Monday, May 15, 2006

How is Spain implementing the EU InfoSoc Copyright Directive?

Spain is one of the last European countries to implement the controversial European Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (as well as France and Finland) and has by far failed to meet the December 2002 transposition deadline.

The current text of the bill has been passed by the lower chamber (Congress), and is now pending the approval of the Senate; it will then go back to Congress for final approval (expected sometime this year).

Raquel Xalabarder, a well-known Spanish copyright professor and lawyer, has sent us an excellent summary of the current proposed copyright law. Professor Xalabarder’s summary is very useful, not only because of its completeness, but also because it provides the political context of the proposed law.

Based on her research and according to my own reading of the proposed text, the evaluation of the Spanish implementation is heartbreaking: it is a “minimal” and "bad" implementation of the EU Directive.

Consumer groups and the technology industry have expressed their discontent with the current proposed text. Even the SGAE (the Spanish collecting society for music authors and publishers) has unexpectedly attacked the current proposal.

Among the more controversial issues is the express recognition of a private copy levy for digital copies (with a campaign against it) and the narrow language in the implementation of the exceptions and limitations.

Of special concern is the language implementing the Technological Protection Measures (TPMs). The proposed text establishes a two-step system to address possible conflicts between TPMs and exceptions & limitations (e.g. the private copy exception):

a) First, it relies on the voluntary measures adopted by the copyright-holders;
b) In the absence of these measures, the beneficiaries of the exceptions can sue the copyright-holders to ensure the full enjoyment of their exceptions/limitations.

The system is up-side-down and completely forsakes the effectiveness of limitations and exceptions in the digital world by putting the burden of the limitation and exceptions enforcement on the “potential users of works” and not on the “right holders”.

My reading of art. 6(4) of the Directive is that it creates the two-step regime that Spain is implementing but it allows for flexibility when designing the system (".... in absence of voluntary measures taken by right-holders....Member States shall take appropriate measures..."). A suggestion: Spain should create a cheap & easy arbitration system as an alternative to the current "go to court and defense your-self" proposal.

Hopefully the Senate will react to the current proposal and amend it by taking in to consideration consumers and public interest's concerns. We will keep you posted.


Anonymous Ian Brown said...

I suppose it depends who you trust best to do the job: the courts, or a panel of arbiters most likely appointed by the government. Personally I would go for the former :)

To address cost issues, we successfully lobbied in the UK to ensure that organisations may make complaints to the Secretary of State on behalf of those affected by DRMs. Even better would have been that any decision made by the SoS applies to all users of that technology and not just the individual or org that made the request.

12:21 PM  

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