Alberto Escudero Pascual, Department of Microelectronics and Information Technology, Royal Institute of Technology (KTH) (aep/at/it.kth.se)
This chapter presents the status of the
new Spanish law of intellectual property (as in the first Draft of November 2002).
As of late May 2003, this is the only public proposal; a second Draft, dated
There is not official date for the final proposal but it is most probable that it will not happen until the end of the summer 2003. Few changes are expected in the area of “technical protection measures”.
The Law of Intellectual Property that is
currently in force in
The reformulated text of intellectual property (TRLPI 1/1996) was promulgated through a royal legislative decree to comply with the European directives on questions of legal harmonization, specifically 1998/93/EC.
The responsibility for implementation of
the new Copyright Directive 2001/29/EC in the Spanish national law lies with
the Ministry of Education, Culture and Sport (MECD). On
The motivation of the government behind this Draft is not only to update the Spanish law to reflect the Copyright Directive but also comply with the unanimous decision, taken by the Spanish Congress on 11 June 2002, to introduce significant changes to intellectual property rights management. The Congress’ decision requested the Government to introduce and implement the changes necessary to enable effective conflict resolution in intellectual property matters.
The Draft includes a considerable reform and increase in power of the Commission for Intellectual Property. The aim of the reform is to make the Commission a key organization when it comes to resolution of intellectual property conflicts.
During the presentation of the Draft in November 2002, the Government included a brief explanatory document on the proposed changes. In it the Government stated that due to the complex and very technical character of the sections concerning legal protection of “technical protection measures”, the new Spanish law of intellectual property tries to reproduce the European Copyright Directive as faithfully as possible:
“The Directive establishes a system to protect
the technical measures that are used to protect works and digital rights
management information. These new measures constitute a novel matter, extremely
technical, and very much discussed during the development of the community
Directive, and that is the reason why the incorporation of the related text
sticks faithfully to the original text of the Directive.”
In the same document, following the same reasoning, the government stated that is not enough to legally protect “technical protection measures” but that it is also necessary to create provisions that protect the work against devices, services or any auxiliary act that can lead to the circumvention of protection measures.
It seems clear that the Spanish Government has not been able to create a national policy related to “technical protection measures” and remains unaware of the possible implications in areas such as computer security or interoperability.
The reformulated text of intellectual property (TRLPI 1/1996 or LPI 1996) describes in sections 31 to 41bis the situations where a work or other subject-matter is exempted from the reproduction right.
The draft proposed by the Spanish Government, in sections 6 to 14, presents the changes and additions to the limitations and exceptions included in the law of intellectual property of 1996.
The final result is that the suggested modifications to the reformulated text of intellectual property (LPI 1/1996) are mainly to include exemption cases that the Directive allows including some extra limitations.
The following section compares the exceptions and limitations to the reproduction right described in the Directive, the Spanish law of intellectual property (LPI 1996) and the proposed new draft (Draft).
· use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;
Section 8 of the Draft modifies section 32 of LPI 1996. (Draft includes the limitation that the research work must already been made available to the public).
· uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
Section 6 of the Draft modifies section 31 of LPI 1996 that removes the specific exception in the case of blind people and Braille. Section 7 par.2 of the Draft adds a new section 31bis to include any kind of recognized disability. (Draft similar to Directive).
· reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;
Section 9 of the Draft modifies section 33 of LPI 1996. (Draft similar to Directive, states that Parliament and public body speeches do not need to be about current events to be exempted from the reproduction right).
· quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;
Section 8 of the Draft modifies section 32 of LPI 1996. (Draft similar to Directive, specifically states that press quotations that are part of a press review or press summary are also exempted).
· use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings;
Section 7 par 2 of the Draft adds a new section 31bis to LPI 1996. (Draft similar to Directive)
· use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author’s name, is indicated, except where this turns out to be impossible;
Section 9 of the Draft modifies section 33 of LPI 1996. (Draft similar to Directive)
· use during religious celebrations or official celebrations organized by a public authority;
Included in section 38 of LPI 1996. (Draft includes a limitation: musical works, performed in religious or official celebrations, are exempted from the reproduction right if the entrance is free and the artists involved are not receiving any specific economic compensation).
· use of works, such as works of architecture or sculpture, made to be located permanently in public places;
Section 11 of the Draft modifies Art 35 of LPI 1996. (Draft similar to Directive).
· incidental inclusion of a work or other subject-matter in other material;
Included in section 35 of LIP 1996.
· use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;
Section 11 of the Draft modifies Art 35 of LPI 1996. (Draft similar to Directive)
· use for the purpose of caricature, parody or pastiche; (section 39)
Included in section 39 of LPI 1996 (Draft includes two limitations: the parody should not create confusion with the original work and should not damage the original work or its author)
· use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;
Section 13 of the Draft modifies section 37 of LPI 1996. (Draft contains many vague limitations concerning the exemptions for libraries. The exemption is limited to public libraries and institutions that are part of the Spanish education system. Institutions must not make any direct or indirect commercial use of copies.)
· use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.
The Draft includes in sections 10 and 12 specific exemptions and limitations for the uses of works under certain technologies. Both articles of the Draft are technology specific as they refer to databases and works broadcasted by cable, satellite or radio stations.
For example:
• Section 10 that modifies section 34 par 2 of the LPI 1996 refers to the right of the owner of the data in a database to access the registers without the authorization of the owner of the database (Section influenced by Directive 96/9/EC).
• Section 12 that modifies section 36 describes the technical transformations of the work that are allowed to cable, satellite or radio when authorized to broadcast a work.
When it comes to technical protection measures, the Draft tries to reproduce the Directive as faithfully as possible. The Spanish proposal does not deal with over-protective technological protection measures or any other related aspects such as interoperability, implications for the research community or security issues.
The new section 174 establishes a penalty of 6000€ per day to those who prevent recognized beneficiaries taking advantage of exemptions using technical protection measures. The Minister of Education, Culture and Sport, upon a proposal of Commission of Intellectual Property, can legally this penalty.
The Spanish Draft does not propose any concrete penalties for infringing copyright or circumventing controls. In that respect, the Draft in sections 64 and 65 adds two new articles to the LPI 1996 (sections 173 and 174) that refer to the limits of property rights and technological measures.
Section 173 establishes the Commission on Intellectual Property as the legal body to intervene in cases of property rights conflicts and technological protection measures. The Minister of Education, Culture and Sport, upon a proposal of Commission of Intellectual Property, can legally impose sanctions and penalties.
The General Society of Authors and Publishers of Spain (SGAE), founded in 1899, is a private intellectual rights management organization dedicated to the defense and management of the intellectual property rights of its more than 66,000 members. Authors declare their works to the organization, which then manages them.
SGAE’s monopolistic position has lately been questioned in continuous lawsuits by DAMA (Derechos de Autor de los Medios Audiovisuales). DAMA, formed in 1999, is a new rights management organization that includes the majority of the directors and screenplay writers of the cinema and television.
According to the Spanish Government, the new Draft includes a reform of the Commission of Intellectual Property whose main objective is to facilitate the resolution of this kind of conflicts between intellectual right management organizations. This opinion is strongly opposed by the SGAE that sees in the Commission a clear threat to their interests. SGAE has made numerous public statements against the new Draft and the functions of the Commission[2].
The Libraries and Intellectual Property Working Group (BPI-WG) is part of the Spanish FESABID (Federación Española de Sociedades de Archivística, Biblioteconomía, Documentación y Museística). The BPI working group has been very active representing the interest of the libraries in the discussions with the Spanish Government and supporting the new roles of the Commission for Intellectual Property.
As can be read in their last public statement of April 2003[3], one of their points of disagreement is related to the content of section 13 of the Draft that modifies section 37 of LPI 1996. FESABID argues that the limitations for the exemption included in the Draft are far more restrictive than the ones included in the Directive. According to the intellectual property working group the Spanish Draft gives unfounded privileges to state-owned libraries versus other kind of libraries.
Another of the arguments presented by FESABID’s BPI working group is the need to include in the
Draft the limitation for copies made for the purpose of conservation or
research.
Proinnova is an interest group of Hispalinux and ATI (Asociación de Técnicos de Informatica). Their work focuses on software patents and innovation. The group supports the petitions of the The Foundation for a Free Information Infrastructure (FFII)[4] and consider the European Union Copyright Directive and the Spanish proposal for a new law of Intellectual Property a threat to free software and innovation in Spain and Europe. Proinnova also believes that legal protection of “technological protection measures” will make the development of inter-operable products impossible and degrade software security.
Sincanon emerged in early 2002 as another interest group of Hispalinux after the Spanish Government agreed to apply a tax to computer CD-ROMs, on the assumption that these were regularly used for recording copyrighted music. Sincanon argues that the assumption clearly damages the free software community as free software has no right of remuneration for copying.
N.B. The Draft presented by the Spanish Government includes in section 5 (modifying section 25 LPI 1996) the power to apply an equitable “tax” to any equipment and media that can be used to reproduce a work. The “tax” is conceived as a compensation mechanism to the authors of copyrighted work. The Government is responsible for publishing and updating a list of “taxed” equipment at least biannually.
In March 2003, the newly formed Spanish Chapter of Computer Professionals for Social Responsibility made public an analysis of the Draft[5]. Their position is aligned with the public statements of the European Chapter of the Free Software Foundation[6]. CPSR-ES’s statement brought attention to the implications of the legal protection of technical protection measures. Their Draft’s analysis points out five worrying trends:
1. The Internet is considered as a public communication and authors of works are required to have digital rights management intermediaries.
2. All cultural works are treated as a pure commercial product; the law does not refer to non-commercial works.
3. The Draft provides to the digital (intellectual) rights management bodies the power to monitor not only distributors but also the final consumers.
4. The editors are given more benefits that the author themselves. Editors receive the compensation rights when authors renounce its exercise.
5.
The technologies that can
be used to circumvent technological protection measures are banned. This
measure limits the freedom of expression, hinders scientific research in
mathematics and computer science and threatens the right of using legitimate
digital material.
There have been five main arguments present in the debate on the new Spanish Law of Intellectual Property. The discussion related to technological protection measures has been overshadowed by other issues as the role of the Commission for Intellectual Property or the limitations and exemptions for private copies.
The governmental initiative of reinforcing the role of the Commission for Intellectual Property has been well received by most of the parties involved in the discussion. The major concerns about the Commission come mainly from the SGAE. The SGAE has made numerous public statements criticizing the Draft that they consider will bring big losses to “their” sector.
One of the main arguments in the debate has been the need of exemptions for private copies in cases of research or conservation and the legal requirements imposed on the different kind of libraries in their statutes or mission to enjoy the related exemptions. The debate is still open and FESABID issued a new statement on 1 April 2003 insisting that the limitations included in the last Draft are not consistent with the Directive.
As a result of a court case between the SGAE and the CD-R producer Traxdata in January 2002, Traxdata has been forced to pay the SGAE a fee for every CD produced since 1997. Despite the protests from some groups such as Sincanon that consider the “tax” discriminative against the free software community, the Government’s Draft imposes a fee on equipment and any other reproduction media.
Civil organizations as Hispalinux, the Spanish chapter of CPSR and Linux Users Groups have been trying to create awareness about the implications of the Draft for free software development in Spain. The Draft does not provide any alternative to free software programmers to manage their property rights than with the services of an intermediary (i.e an intellectual rights management organization). During the creation of the Draft, the Government consulted the eight recognized management organizations and some consumer groups such as hotel federations and commercial television associations. But very little attention was given to other important sectors such as non-commercial software developers and civil society groups.
Very little public debate has occurred over the legal protections for technical protection measures. The government confessed in November 2002 that the topic was too complex and they have limited themselves to faithfully reproduce (i.e. copy literally) the content of the Directive. Unfortunately neither the Draft nor a proper social debate has dealt with important issues such as interoperability and technical protection measures.
The media has not paid much attention to this issue. The confrontation between the SGAE and the government concerning other aspects of the Draft such as the role of the Commission of Intellectual Property, has taken much of the space in the newspapers.
The Spanish Government presented in November 2002 the first Draft of the new Law of Intellectual Property. The Draft, that included a set of changes to the old law of 1996 (LPI 1996), was intended to implement the European Copyright Directive and introduce changes to the Commission for Intellectual Property.
The main arguments in the debate have focused on the roles of the Commission and the definition of a “private” copy. Other topics as the vulnerable position of free software or the legal protection of technical protection measures have rarely been included in the Ministry of Education’s (MECD) official statements. The research and free software community has been excluded from the official debates and most of the discussions have been driven by the main intellectual rights management organizations and other pure commercial sectors (television, music and radio).
A consequence of this lack of awareness
is that the Spanish Government has not developed a national policy concerning
“technological protection measurements” at this point, and has limited itself
to reproducing the Directive as faithfully as possible.
[1] Draft of the Spanish law of intellectual property. Available from http://www.mcu.es/Propiedad_Intelectual/indice.htm
[2] Discussions between the SGAE and the Spanish Government. http://es.news.yahoo.com/030305/4/2l410.html and http://www.porlared.com/cinered/noticias/i_act03030601.html
[3] Opinion of FESABID’s Intellectual Property Group. Available from
http://www.bib.uab.es/project/cas/piadr8.htm
[4] Opinion of Proinnova. Available from http://www.spain.cpsr.org/20022003.php
[5] Opinion of Computer Professionals For Social Responsibility (Spanish Chapter). Available from
http://www.spain.cpsr.org/20022003.php
[6] Schenier Declaration in Felten v. RIAA, August 2001. Available from
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_schneier_decl.html