After a rough handling, curd proposals, counterproposals and confusion, the reform of the Copyright Law [PDF] will definitely vote Thursday in the House of Congress of Deputies. With most of the Popular Party, the rule will presumably approved.
As before, the modification of this standard already announced last year and half has been accompanied by controversy since it introduces developments will affect users of the network in Spain . All this waiting for the next reform of the Penal Code which criminalize unauthorized links significantly. We update the summary of the most important parts that deal with the Internet.
How will this affect users? What are the keys to this new proposed reform that Congress passed in the Committee on Culture, urgent ? Why is (again) so controversial
Above all, two aspects of this proposed reform affect Internet users: strengthening called ‘Sinde Law’ known as ‘canon SAFE’ or ‘Google tax’. Regarding the first, we must remember that the origin of reform known as ‘Sinde Law’ -Changes of several laws, including the Law on Intellectual Property (LPI) and the Law of Services of the Information Society (LSSI) , included in the Sustainable Economy Law (LES) – administrative sought to create a weapon to ‘restore law’ in the case of a violation of copyrights on the Internet, in a quick and easy way . Now amending and reinforces this legal instrument, after checking their very limited effectiveness.
Second, the limitation of activity review (cite certain content) has monopolized the headlines along the lines of this reform, all for the creation of a compensation or fee waived for authors content with “informative” and pay for content aggregators. In addition, the Government has entered her haste that these measures take effect as soon as possible: ‘compensation review shall enter into force on January 1
<. h2> STRENGTHENING law Sinde
Extension of the concept of ‘offending’
- With the text of the reform in hand, almost all active Internet users-that say, who produce original content completely well but allow the participation of others, or from the contents of others could potentially infringing intellectual property rights.
The proposed rule as drafted (Article 158 ter. 2. A and B), open the door to stretch the concept of ‘offending’ (for ‘pirate’) almost any citizen who has a website and provide links to unauthorized content, even if they are not placed in charge of the site (ie, if they appear in your comments readers should permanently monitor). Although the standard has been designed to act against type ‘Series Yonkis’ sites, the fact is that text has been removed the requirement of ‘significant harm’ . Any damage, therefore, can be considered as “violation”. The rule is expected to attend “the hearing level in Spain [allegedly infringing site], the number of protected works and performances, indiciariamente unauthorized, which you can access through the service or business model.”
Notification (Hey, are ‘pirating’ me)
- It seems that the owners of websites content, whatever they are, are going to have to be very aware of any possible notification of infringement of intellectual property either. to start the administrative process one has only to show that it has tried to contact the alleged infringer
To order pursuant to Section Two, who considers that a site has infringed their intellectual property rights to ‘prove’ that has previously tried to notify the alleged infringer and that the has not been ignored. To prove it, enough for the aggrieved send an email to the alleged ‘offender’ . Even if he does not answer, he gives notified. If you do not provide an email account, this requirement is even necessary. (Article 158 ter. 3.). In such cases it is sufficient publication of the notice in the Official Gazette.
Section Two acts
- With the tools to ‘safeguard the intellectual property rights’, still remains in the hands of an administrative body set if someone commits a violation of intellectual property rights, ie, the Government may decide and if necessary punish who himself deemed to be a ‘pirate’. Remember that now the second section can act not only against those who violate the intellectual property but “against those who facilitate the description or location of works” (except those who supply one acividad neutral search engine content, ie , Google).
The administrative body called the Second Section of the Commission on Intellectual Property is made (Art. 158. 4), chaired by the Secretary of State for Culture (or person delegated by him), by two members of the Ministry of Education, one member of the Ministry of Industry, one member of the Ministry of Justice, one member of the Ministry of Economics and a member of the Ministry of the Presidency . Decide whether or not declared admissible claims, further decides whether there is a violation of the call-before ‘Sinde Law’ that could only be decided by a judge and act accordingly. Now, in addition, the process can be started against those websites that “enable the description or location of works and performances that offered unauthorized indiciariamente [...]. In particular, it will include those sorted and classified listings offer links to works and services referred to above, regardless of whether these links may be initially provided by the service recipient. ” That is to say, is entered in the art. Ter 2. 158 B a provision that is specifically designed to act against websites links to downloads. In this regard, we should remember a recent ruling by the High Court following an appeal for ‘Quedelibros’ against a decision of the Second Section, and which considers the bonding sites, as intermediaries, not infringe intellectual property. The High Court states that it can not act alone against a site ‘facilitator’, but when acting together against a service ‘-infringing’, and remember that the procedure provides for Intellectual Property Act “is aimed at the restoration of legality “not punitive. The first thing to do is notify the alleged infringer.
Find the offending (and incidentally users)
- To date, all governments that have tried to fight ‘piracy’ claimed that never act against Internet users. However, this reform opens the door to the possibility of identifying a user of the Internet in the civil courts, but has not committed a serious offense, in order to claim compensation through civil files shared by users.
The proposal suggests a modification of the Civil Procedure Act (LEC) ‘as’ not only to give one more tool to locate the alleged offenders responsible for linked websites – the Government’s objective when plated reformer but providers of information society related to them, and even to any user of such services “on which presents reasonable evidence that it is making available or disseminating such direct or indirect “material protected by copyright. This reform gives the possibility, ultimately, to identify any active Internet user civilly, but has not committed a serious offense. As explained by the specialized lawyer David Maeztu on your blog, the reform of Article 256 of the LEC includes the possibility that “the holder of an intellectual property law that seeks to bring an action for infringement of it “may request” a provider of information society “that” provide information necessary to carry out the identification of a user of their services. ” Following amendments in Congress this week, is not even necessary that the user is broadcasting “large-scale” , but only be taken into account “the substantial amount of protected works and not unauthorized broadcast or made available. ” A more complete explanation can be read on the blog of expert lawyer said.
The alleged infringer deletes the contents. Or not
- If one refuses to remove content, shall be punished by ‘pirate’, without prejudice to other civil and criminal avenues that are open against the offender. But if you access and remove the contents, it is also a ‘pirate’ because it carries an implicit recognition that, without prejudice to other civil and criminal avenues that are open to the offender.
If the manager of the website ‘denounced’ access remove content at the request of the Second Section (for whatever reason), the text states that this “voluntary withdrawal of works and other unauthorized have recognition value Implicit in the aforementioned violation of intellectual property rights. ” That is, if one removes the content or ‘vulneradores’ voluntarily links, you acknowledge that you have also committed an illegality. Remember that a year ago the Supreme Court lay precisely a similar provision in the regulations for the so-called Sinde Law ‘for being contrary to law, as recalled by the lawyer Javier Maestre BufetAlmeida Attorneys.
If the alleged violator refuses to remove content, in these cases the second section will be able to draw on a number of tools to ‘reinforce’ its power. In case of a default ‘repeated’ (which links appear to unauthorized works twice or more) managers face fines of up to 600,000 euros (Sec. 158 6), according to the modification by the Senate Committee on Culture (PDF). The second section can also ask intermediators, web hosting services, payment and advertising their collaboration to suspend its cooperation with a declared delinquent or ‘smother’ economically (Art. 158 5) site. Finally, these behaviors declared ‘offenders’ are kept, may order the blocking of website companies providing Internet access, though, prior judicial authorization. In this case, it should be remembered that the judge merely authorizes or not this blockade unattended if the website is infringing on a trial with all legal guarantees . And if the website has a direction under the national domain ‘.com’, the second section may further order the responsible registration authority domains (RED.es) to cancel that domain for a period of at least six months .
The digital canon disappears … and private copying, almost
- Forget called ‘digital private copying levy’ … In fact, forget the private copying as we’ve known it since it is strictly defined: only allowed to copy for private use a material in a physical medium and purchased over the licit only channels.
One of the flags of this reform has raised the government is the disappearance of the controversial ‘digital canon’, ie the compensation for private copying that manufacturers had to pay the management entities copyrighted by each device capable of recording and playing content (CDs, DVDs, USB drives, MP3 players, etc.). In the end, as always happens in these cases, the price premium consumers assuming it ended. European Justice took over, four years ago, that the application of this canon was not lawful because, in practice, it was ‘indiscriminate’ (Case Padawan). In the previous reform, the Government stated that the state had to pay that compensation via the State Budget (ie, not just consumers, but for all citizens) and dramatically reduced the liquidated amount (before the established management entities now the Ministry of Culture). With the planned reform, radically narrows the concept of “private copy” (Art. 31.2) only that which is made from a purchased original media. Are digital works without support (streaming, for example) are excluded, copies of works rented, or borrowed from or given? As the rule is drafted, yes. The proposed text copy is not considered private subject to the approval of an author who holds that A “natural person exclusively for private use,” also “is made from works which lawfully accessed from a lawful source “,” marketed and purchased commercial property for sale “or” through a legitimate act of public communication “. Enter exception of those works “made available to the public [...] so that anyone can access them from a place and time you choose, be authorized, as agreed by contract, and, if applicable by payment of money, the reproduction of the work. ” Somehow, works with free or less restrictive licenses (as licensed by Creative Commons ) could fit in here. Furthermore, Article 25.2 states “inalienable” the right to collect compensation for private copying “to authors and performers”.
WHAT IS THE ‘SAFE CANON’
The new ‘right to quote’ specifically referred to the reviews, it is one of the points that have aroused controversy. The proposed rule amends section 32.2 of the present law, and specifically states: “The availability to the public by electronic service providers of content aggregation not significant fragments of content, reported in journals or Web sites that are regularly updated and informative purposes of creating public opinion and entertainment will not require authorization, subject to the Right from the publisher or, where appropriate, other rights holders receive fair compensation . This right will be inalienable “.
First, as pointed professor and expert Adsuara Borja, “it is not correct to say that the ‘canon’ is for ‘link’, but ‘public communication’ (a fragment of) A content. ” With this interpretation, may avoid payment of such compensation the sites that users do not copy and paste verbatim extracts from news sites, but to generate an original abstract and then a link to the original source .
On the one hand, be considered ‘date’ any verbatim excerpt of a work republished elsewhere, even those works produced by media. It seems that the publication of any fragment (however small, if we stick to the text literally) can lead to fair compensation. And it remains to be seen what is meant by “journals or websites regularly updated and have an informative purpose and have an informative purpose of creating public opinion and entertainment” Are we talking about traditional media website? We talk about new media? Are we talking about blogs, informative accounts on Twitter, Facebook and other social networks?
The standard does not specify clearly who it is who will pay and who is to receive compensation. And yet, by the Government’s assertions, it seems that those who charged that compensation will be the traditional media (hence has been dubbed the ‘canon’ with the name of the Spanish Association of Publishers, SAFE), while must pay social content aggregators like Digg or Google News. And of course have to take into account the limit set forth in Article 40 bis of the LPI, which excludes the ‘right quote’ (or aggregation, in this case) activities “unreasonably prejudice the interests legitimate author or detrimental to the normal exploitation of the works to which they relate. “
The article talks about ” electronic service “. Adsuara in his post, says that under the LSSI is considered “providers” who are economically active, “which would exclude those who perform this activity without profit.” In addition, the expert quoted thinks that “excludes those providers (e) whose services consist not add fragments and provide content such as social networking, in which users are those who use and share holders or insignificant fragments contained in the press. ” Adsuara speaks thus of ‘right of aggregation’, not ‘appointment’ .
In addition, the text states that the copyright owners (publishers or “other headlines “place where, according to Culture, will be framed journalists) also have a ‘inalienable right’ to collect fair compensation. It reads: “This right can not be waived and shall be paid by the management entities of intellectual property rights.” Adsuara charge against the indispensability: “Do not forget that intellectual property rights are individual and rights holders should be able to work with what they want: collect it, give it away or even destroy it.”
Also, legislators and the government itself seems to ignore that authors usually are contractually obliged to release all his economic rights to publishers in exchange for an amount which, in the case of journalists often part of wages. In this regard, we highly recommend this careful lawyer David Maeztu post, which highlights the problem of considering whether or not a newspaper as ‘collective work’ read; in this case, neither journalists nor gfotógrafos could see a euro to see your work reviewed, money that would go to their editors.
The same rule provides that the collection, management and distribution of the money ‘ inalienable ‘will fall to the management entities of copyright, especially CEDAR , which is responsible for managing most of the rights of authors and publishers of books and periodicals in Spain.
This ‘canon’ was initially named ‘rate Google’ , even though the rule expressly excludes seekers. In the second paragraph of art. 32.2 provides that the search engines (with Google clearly ahead in Spain) will not have to ask permission from the authors or pay the ‘canon’ “provided that such making available to the public occurs without proper commercial purpose [Google searches have one yet although indirectly, through advertising AdSense] and perform strictly limited to what is necessary to provide search results in response to inquiries made previously by a user to search for commercial purposes, provided that the provision of the public including a link to the source page of content. “
The controversial measure has pitted traditional media with new media ‘online’ and even Google, which has suggested that veiled his back to them and failed to show ‘snippets’ (the first lines of the articles) and ‘thumbnails’ (images) of the top websites for information, refusing to pay for it. In the end, the media asked to return to the previous situation.
The article also covers extensively the canon by appointment in teaching , especially in the university, and stipulates that schools have to settle the compensation to the authors cited. It is a measure that will have a profound impact on many academic -are dedicated to research authors who want their works to be widely disseminated and reported that this inalienable right to royalties may slow diffusion-and of course this will impact accounts in the battered Spanish universities. However, in this review we have focused the impact that the new reform could have on the Internet.
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