Open conflict on downloading

The public authorities have an obligation to defend intellectual property, and the enactment, at last, of the "Sinde law" (so called for the Culture Minister Ángeles González-Sinde) is good news. The agreement reached between the Socialist government, the Popular Party (PP) and Catalonia's CiU has unblocked a necessary piece of legislation, which may prove unable to solve the problems that have made Spain a world leader in illegal downloading. But it does lend hope to the audiovisual and publishing industries, and conveys a clear message to those who still, with a certain demagogy, defend a "free" internet.

The attitude of the PP, first rejecting the norm and later, in the Senate, accepting it with a couple of changes, has complicated the tortuous passage of this law, which is likely to be a handicap to its effectiveness. In the PP's favor is the fact of having forced the government to seek a formula with stronger constitutional safeguards. The draft that the Congress first rejected, and has now been approved by the Senate, gave a ministerial commission the power to investigate a website without judicial supervision. Now, with the agreed amendment, a judge must intervene to identify the service suppliers, and later to order the closure of the suspect website.

The government has also promised to revise the "digital canon" (an across-the-board royalty charge on all data-recording devices), a pledge which is not without a certain redundancy given that the European Court's recent ruling has obliged it to correct the canon anyway, exempting from it such companies and public agencies which acquire the canon-subject copying equipment for other, legitimate, purposes. The point that has aroused most controversy is the one which establishes that web-closure measures may be taken when the supply of a service "has caused or is likely to cause damage to economic interests." This preventive provision has already caused the announcement of future appeals to the Constitutional Court, which indicates that the passage of the Sinde law may not be the end of the conflict.

Internet is not a lawless space. It cannot be. But isolated measures are not sufficient to stop pirate downloading and modify people's behavior. The European Union holds that there has to be a thorough revision of the system of licensing for use of copyrighted material, while also seeing to the transparency of the agencies that manage royalties. In other countries, laws similar to the one now enacted are causing a shift of net users to systems different from the P2P-type file exchange.

The problems of the industry's adaptation to the new digital reality arguably deserve a more comprehensive public debate, and a more general and more coherent legal treatment. An in-depth revision of the Intellectual Property Law would also have been a more suitable instrument for prosecuting illegal downloading. Instead of such a thorough, systematic approach, the government, though Sinde's Culture Ministry, opted to add a footnote to the fine print of the Sustainable Economy Law, which has only exacerbated the existing polarization on this matter.