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Deutsch: Spanischer Finanzrat kritisiert neuen Gesetzesentwurf zur Durchsetzung...

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 RedSOStenible.net, 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 agreements".

The Fiscal Council criticises the draft law allowing the Culture to close down web sites, (only in Spanish, updated 16.02.2010)
http://www.elmundo.es/elmundo/2010/02/15/navegante/1266250340.html

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)
http://www.elmundo.es/documentos/2010/02/15/informe.pdf

The Spanish Presidency proposes more repression on the Internet in its Declaration of Granada (only in Spanish, 12.02.2010)
http://www.internautas.org/html/6016.html

The Minister of Justice defends the Sustainable Economy Law (only in Spanish, updated 16.02.2010)
http://www.abc.es/20100216/cultura-/ministro-justicia-defiende-economi...

The Fiscal Council's non-binding report on Feb. 16 said the proposal Spanish Societies Reject Concerns Over Anti-Piracy Law (17.02.2010)
http://www.billboard.biz/bbbiz/content_display/industry/e3i47f0e86cdb7...

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)
http://www.finanzas.com/noticias/formacion/2010-02-16/247579_dice-cons...

EDRi-gram: Spanish Government proposes new legislation against file-sharing (13.01.2010)
http://www.edri.org/edrigram/number8.1/spain-law-file-sharing