Spanish Fiscal Council criticizes the new draft law on IPR enforcement

By EDRi · February 24, 2010

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Deutsch: [Spanischer Finanzrat kritisiert neuen Gesetzesentwurf zur Durchsetzung des geistigen Eigentumsrechts |]

In a non-binding report issued on 12 February 2010, the Spanish Fiscal
Council criticised the draft law proposed by the Government known as the
Sustainable Economy Law (la Ley de Economía Sostenible – LES) that foresees
new Intellectual Property Rights (IPR) enforcement measures on the Internet.

The Council shows concern related to the LES draft text which places the
intellectual property rights at the same level with the fundamental rights
such the freedom of expression, public security, national defence, public
health or non-discrimination on grounds of race, sex or religion. In the
Council’s opinion, the intellectual property rights should be treated as
property rights and not as fundamental rights.

The report also raises concerns over the fact that the draft law gives the
Intellectual Property Commission (Comisión de Propiedad Intelectual – CPI)
the power to propose the closing down of web sites offering download links
to alleged unauthorized copyright content. According to the Fiscal Council
this “has an enormous potential to invade the sphere of fundamental rights.”

The report also emphasizes the fact that the proposed law “is limited to
cases where the service provider is established in Spain or in a State of
the European Union,” which makes it inefficient. If sites with a Spanish
domain are closed, other identical sites may occur in countries that are
outside the EU.

Peaople’s Party (PP) culture spokesman José María Lassalle stated that the
Fiscal Council’s report supports PP’s position in the matter and there are
many other voices that have expressed opposition to the proposed
legislation. “This is not a law against violations of intellectual property,
it is a law against civil rights,” said Fernando Berlin, one of the
promoters of, consisting of bloggers, businessmen, and
Internet user activist groups.

The Public Ministry also warned over the fact that the new draft allows CPI
to ask ISPs data that would help in identifying alleged copyright infringers
that sometimes will not be limited to information on the owner of a web
page, but other data as well that would need previous court authorisation.

Therefore, the Fiscal Council proposes a modification of the draft text so
that judicial authorisation should not refer only to data that are protected
by the secret of communications fundamental right but also for data covered
by the right to privacy. “Anyway, what in no case can CPI claim and cannot
be provided by ISPs are data regarding private communications that may
affect the fundamental right of the communication secret that mandatorily
require judicial authorisation” says the report.

On 16 February 2010, the Ministry of Justice Francisco Caamaño defended the
LES and the modification introducing a regulation that would be to the
benefit of the right to freedom of expression and access to information and
not so much to the benefit of intellectual property. He stated that the new
law stipulated a judicial guarantee that would prevent an Administration
institution to block access to a web page without court order.

In the meantime, the Spain EU presidency is pushing its Declaration of
Granada for more IP enforcement actions. The present text suggest to the
European Commission “to analyse the possibility to present a modified
proposition of the Directive on the penal measures meant to guarantee the
respect of the intellectual property rights, in order to complete EU
legislative framework for the application of IPR” and invites “the member
states and the Commission to act for the promotion of a high level of
protection of the intellectual property in the bilateral and international

The Fiscal Council criticises the draft law allowing the Culture to close
down web sites, (only in Spanish, updated 16.02.2010)

Fiscal Council’s Report – Draft project of the Sustainable Economy Law –
Draft project of the organic law complementary to the Sustainable Economy
Law (only in Spanish, 12.02.2010)

The Spanish Presidency proposes more repression on the Internet in its
Declaration of Granada (only in Spanish, 12.02.2010)

The Minister of Justice defends the Sustainable Economy Law (only in
Spanish, updated 16.02.2010)

The Fiscal Council’s non-binding report on Feb. 16 said the proposal
Spanish Societies Reject Concerns Over Anti-Piracy Law (17.02.2010)

PP says the Fiscal Council supports its thesis on the downloading and
criticises that the Government “continues without doing its homework” (only
in Spanish, 16.02.2010)

EDRi-gram: Spanish Government proposes new legislation against file-sharing