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DE RUEHMD #1075/01 3081048
ZNR UUUUU ZZH
R 041048Z NOV 09
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC 1413
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 4189
RUCPDOC/USDOC WASHDC
RHEHNSC/NSC WASHDC

UNCLAS SECTION 01 OF 02 MADRID 001075 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EUR/WE AND EEB/TPP/IPE 
STATE PASS USTR FOR D.WEINER AND J.GROVE 
STATE PASS U.S. COPYRIGHT OFFICE FOR M.PALLANTE, M.WOODS 
COMMERCE FOR 4212/D.CALVERT 
COMMERCE ALSO FOR USPTO 
 
E.O. 12958: N/A 
TAGS: KIPR ETRD ECPS SP
SUBJECT: SPAIN IPR/INTERNET PIRACY: INTER-MINISTERIAL COMMISSION 
 
REF: A) MADRID 1052; B) MADRID 982; C) MADRID 224 
 
MADRID 00001075  001.3 OF 002 
 
 
SENSITIVE BUT UNCLASSIFIED - PLEASE PROTECT ACCORDINGLY 
 
¶1. (SBU) In an October 29 meeting, visiting senior U.S. Copyright 
Office official Maria Pallante and Spanish Culture Ministry official 
Carlos Guervos discussed the recently formed Inter-Ministerial 
Commission on Internet piracy.  Guervos said the Inter-Ministerial 
Commission will draft a law to improve and speed up the IPR civil 
litigation process and also create an administrative mechanism to 
have infringing content removed from the web.  Guervos later told 
Econoff that the Commission will not attempt to modify the 
Prosecutor General's (Fiscala) Circular, but predicted that the new 
legislation will compel the Fiscala to issue a new Circular that 
will correct the deficiencies of the current one.  Septel reports 
discussion of issues pertaining to the December meeting of WIPO's 
Standing Committee on Copyrights and Related Rights (SCCR).  End 
Summary. 
 
INTER-MINISTERIAL COMMISSION TO PROPOSE LEGISLATION 
 
¶2. (SBU) Maria Pallante, Associate Register for Policy and 
International Affairs at the U.S. Copyright Office, met October 29 
with Carlos Guervos, Deputy Director General for Intellectual 
Property at the Ministry of Culture, on the margins of a 
WIPO/Ministry of Culture-sponsored conference on Intellectual 
Property and Cultural Heritage in the Digital Environment.  Guervos 
characterized the Council of Ministers' recent creation of an 
Inter-Ministerial Commission to work on intellectual property 
infringements on websites (see ref A) as a real example of the will 
of the Spanish government to tackle the piracy problem.  He 
identified the Commission's mandate as finding effective legal 
solutions to Internet piracy and said the members would build upon 
the efforts over the past several months by representatives of the 
Ministries of Industry, Culture, Justice, and Interior to diagnose 
the problem and develop possible solutions.  In an attempt to speed 
up the Commission's deliberations, Guervos and representatives of 
the other three Ministries have been bringing their colleagues from 
the Foreign Affairs, Economy and Finance, and Education Ministries 
and the Presidency up to speed on efforts undertaken to date. 
 
¶3. (SBU) The Commission, he said, is to present a draft law to the 
Council of Ministers by December 31 for approval preparatory to its 
submission to Congress.  While the Commission will also propose 
measures on public awareness and education - the reason of the 
Education Ministry's inclusion is the intention to incorporate 
anti-piracy messages into school curricula - the legislative 
component is far and away the most important piece, Guervos said. 
 
IMPROVING THE CIVIL JUDICIAL PROCESS 
 
¶4. (SBU) The draft legislation, Guervos continued, will contain both 
judicial and administrative solutions.  The government hopes to 
amend the civil procedure law to remove obstacles that currently 
make it extremely difficult for rights-holders to win damages in 
civil litigation against infringers.  For example, the changes would 
make it possible for judges to require disclosure of individuals' 
names based on their Internet Protocol addresses in civil cases. 
The Commission does not intend to address criminal judicial 
processes, Guervos said, because modifying the Penal Code would be 
an arduous and controversial undertaking; however, he argued that a 
robust and agile civil process that offers rights-holders an 
effective remedy would make criminal prosecution less necessary.  In 
addition, he said, a viable civil process would afford 
rights-holders the opportunity to present evidence of the earnings 
of pirate websites from advertising revenues.  Once they have met 
the "commercial profit motive" standard required by the Penal Code 
and the Prosecutor General's Office (Fiscala) 2006 Circular (see 
ref C), rights-holders could convert the case into a mixed 
criminal-civil process, he said. 
 
CREATING AN ADMINISTRATIVE REMEDY 
 
¶5. (SBU) Guervos stated that because, even with these improvements, 
a judicial remedy will remain difficult, the legislation would also 
create an administrative mechanism that does not run afoul of 
privacy and data protection concerns.  The law will either create a 
governmental administrative body or empower an existing body to 
order Internet Service Providers (ISPs) to take down infringing 
websites if they are housed in Spain or block them if they are 
located elsewhere, or at the very least remove infringing material. 
This administrative remedy, Guervos said, would be rapid and thus 
would "stop the bleeding" by removing unauthorized content as soon 
 
MADRID 00001075  002.3 OF 002 
 
 
as it is reported.  He noted that although ISPs have been reluctant 
to support such a solution, having a law in place would provide them 
with "cover" in the case of complaints by irate customers.  In 
response to Pallante's question about punishment of repeat offenders 
who commit willful infringement, Guervos said the law would provide 
for more definite administrative sanctions against webmasters in 
those cases, but he did not specify what they would be. 
 
¶6. (SBU) Guervos noted that unlike a "graduated response" system, 
the Inter-Ministerial Commission's legislative proposal does not 
contemplate measures against individual internet users or consumers 
who download material without authorization.  As such, he said, it 
will not change the Spanish public's bad habits or the culture in 
which unauthorized file-sharing is perceived as not only legal but 
socially acceptable.  That is where the education and public 
awareness ("consciousness-raising," he called it) components will 
come into play. 
 
SECURING CONGRESSIONAL APPROVAL 
 
¶7. (SBU) Pallante asked Guervos whether all the Ministries 
represented on the Commission were on board with the judicial and 
administrative solutions he had outlined.  He replied that the 
various Ministries had different interests and constituencies, and 
some were susceptible to lobbying, but he believed that, in light of 
the mandate and tight deadline imposed by the Council of Ministers, 
it would be difficult for any Ministry to hinder the Commission's 
work.  Assuming that the GOS submits the draft law to Congress in 
January, Guervos could not predict how long it would take to get 
Congress to pass it, though he expected it to be approved sometime 
in 2010.  He noted, however, that since it would be an ordinary, as 
opposed to an organic, law, it would require only a relative, not an 
absolute, majority in Congress, which would make the government's 
task easier and would likely consume less time.  Amending the Penal 
Code, on the other hand, would require an organic or Constitutional 
law, which would be a much more difficult and lengthy process. 
 
¶8. (SBU) In a follow-up conversation, Econoff asked Guervos whether 
the Inter-Ministerial Commission was considering amending the 
Fiscalia's Circular, an action long sought by rights-holders and the 
USG, and one that would not require Congressional approval.  He 
replied that the Fiscalia, though part of the Ministry of Justice, 
is by law independent of the rest of the GOS, which cannot force it 
to revise the Circular.  However, he predicted that the existence of 
the new IPR enforcement legislation would likely spur and perhaps 
even compel the Fiscalia to update the Circular, offering an 
occasion to amend its more problematic provisions. 
 
COMMENT 
 
¶9. (SBU) As outlined by Guervos, the legislation being drafted by 
the Inter-Ministerial Commission, if passed by Congress, clearly has 
the potential to achieve results.  Rights-holders in Spain have long 
bemoaned the near-futility of seeking redress via civil litigation, 
and addressing this problem would represent a concrete advance.  The 
proposed administrative solution, while not as comprehensive as 
similar attempts in other European countries or as inclusive as 
rights-holders would like, could, if properly implemented, 
significantly reduce the availability of infringing content.  The 
fact that the Ministry of Culture is taking its responsibility so 
seriously and is pushing for this relatively ambitious proposal to 
be adopted so swiftly is also an encouraging sign.  In this regard, 
Pallante and Guervos agreed that, given the potential importance of 
the Commission and proposed legislative changes, it would be useful 
for Guervos to travel to Washington in the near future to brief USG 
and U.S. private-sector stakeholders as developments unfold.  What 
remains to be seen is whether the Commission will be able to keep to 
its hyper-accelerated timeline and present its proposals in the nine 
weeks remaining in the year, and whether the government will follow 
up expeditiously in submitting the draft law to Congress and 
pressing for its passage.  End Comment. 
 
¶10. (U) This cable was cleared by Maria Pallante.