USG REPRESENTATIVES REITERATE INTEREST IN WORKING

C O N F I D E N T I A L SECTION 01 OF 06 MADRID 002128 SIPDIS SIPDIS STATE FOR EB/TPP/IPE (JURBAN, JBOGER) AND EUR/WE (ESAMSON) STATE PASS USTR (JGROVES, CWILSON) STATE PASS COMMERCE (ITA - DCALVERT) STATE PASS USPTO (MSHAPIRO) STATE PASS U.S. COPYRIGHT OFFICE (MSKELTON) E.O. 12958: DECL: 11/15/2012 TAGS: ECON ETRD KIPR PGOV ADCO SP SUBJECT: USG REPRESENTATIVES REITERATE INTEREST IN WORKING WITH SPAIN ON COPYRIGHT ISSUES IN CONNECTION WITH NOVEMBER 7-8, 2007 MADRID CONFERENCE REF: (A) MADRID 01807 (B) SECSTATE 107629 Classified By: Deputy Charge d'Affaires a.i., Hugo Llorens, for reasons 1.5 b and d. ¶1. (U) Summary: Associate Register of Copyrights David Carson, U.S. Patent & Trademark Office Senior Counsel Michael Shapiro and Deputy Chief of Mission Hugo Llorens used the Spanish government organized Madrid November 7-8, 2007 "Conference on Intellectual Property Rights in the Digital Environment" to reiterate to the Spanish government our continuing interest in working with Spain on copyright-related intellectual property rights (IPR) issues. Ministry of Industry, Tourism and Trade Secretary of State Francisco Ros expressed an interest in judge-to-judge exchanges on IPR matters. The Spanish government's view remains that Internet Service Providers (ISPs) and content providers should engage in self-regulation to limit internet piracy. However, the government is considering mandating that ISPs include in service contracts a provision that service can be cut off if users infringe copyrights. Moreover, the government is considering making a special effort to encourage stakeholders to move quickly on an internet notice system, leaving takedown for later. These would be positive steps that would begin to address U.S. concerns. Para 2 provides background. Paras 3-4 report on the U.S.-Spain bilateral held on the margins of the conference. Paras 5-6 report on the lunch DCM hosted in connection with the conference. Paras 7-8 report on an industry-government meeting held following the conference. Para 9 summarizes highlights from the conference. Para 10 contains an Embassy concluding comment. End Summary BACKGROUND -------------- ¶2. (C) The Spanish government is aware that it came very close to being watchlisted during the latest Special 301 process. This no doubt partly explained Secretary of State Ros' desire to host the November 7-8 conference. His staff made a point of inviting David Carson from the Copyright Office to speak at the conference. The organizers also invited representatives from the UK, France, South Korea and the EU, as well as important local stakeholders. The government is juggling sometimes conflicting objectives. These objectives include, but are not necessarily limited to: increasing broadband internet penetration, thereby benefiting national champion Telefonica; limiting piracy both because the Spanish government agrees with that objective and also to keep Spain off the Special 301 watchlist; and containing the possible political damage caused by consumer groups and internet surfer ("internauta") groups. There are not many Spaniards in the latter category, but they have a media impact out of all proportion to their numbers. With elections coming up in March 2008, the government is sensitive to them. U.S. - SPAIN BILATERAL NOVEMBER 7, 2007 -------------- ¶3. (U) Participants: DCM Hugo Llorens, Associate Register of Copyright David Carson, U.S. Patent and Trademark Office Senior Counsel Michael Shapiro and Economic Officer Carl Schonander participated for the U.S. Ministry of Industry, Tourism and Trade Secretary of State for Telecommunications Francisco Ros was accompanied by Chief of Staff Juan Junquera Temprano and Subdirector General for Information Society Services Salvador Luis Soriano Maldonado. ¶4. (C) DCM said that the U.S. remained very interested in working with Spain on combatting internet related copyright piracy, and that the conference was a laudable initiative. Ros emphasized that the problems discussed at the conference were "important" and "difficult." He expressed pleasure that the attendees were "first level." Ros said that the internet had to accomodate different business models, including those who favored traditional copyright protection and those who were interested in other models. Junquera said that it was very difficult to change the "mentality" of Spaniards with respect to internet downloading even though the government had conducted several anti-piracy campaigns. He also said that legal instruments were available to rights-holders to protect their their intellectual property. Carson emphasized that the U.S. experience was that public awareness campaigns MADRID 00002128 002 OF 006 had to be accompanied by the prospect of "personal consequences" for those who engaged in internet piracy. Ros said that Spanish law did, in fact, permit action against internet pirates, although the law had not been used adequately by rights-holders. He also explained that his ministry's proposed notice and takedown legislation had been struck down because the Council of State found that the proper consultation procedures had not been followed. Shapiro recounted that a conference participant had said that the cultural industry accounted for 4% of Spain's GDP and that this should be kept in mind in framing internet piracy policy. Ros reiterated that Spanish law provided for ways in which rights-holders could protect their property, although his Chief Staff added that the law was very "garantista," which in practice made it difficult for rights-holders to protect their intellectual property. Shapiro suggested the possibity of meetings between U.S. judges and Spanish judges to compare experiences on how to deal with internet-related piracy matters. Ros said he would talk to his Ministry of Justice counterpart about this possibility. Soriano mentioned that in the last two months, Spanish police had shut down two internet portals and that the owners were being prosecuted. (Note: Rights-holders typically have nothing but praise for the police. Rights-holders' complaints center on the judiciary, as well as a Justice Ministry "circular" to prosecutors that effectively decriminalizes peer to peer file sharing unless there is a commercial profit motive.) Ros concluded by saying that his ministry would focus on judge to judge meetings and more publicity campaigns. DCM-HOSTED LUNCH NOVEMBER 8, 2007 -------------- ¶5. (U) Participants: Industry Ministry Subdirector General Salvador Soriano, Industry Ministry Advisor for EU Trade Policy Carmen Jordan Asensi, Promusicae Chairman and CEO Antonio Guisasola, Federacion Antipiratera (FAP) Director General Jose Manuel Tourne, Spanish General Society of Authors and Publishers Corporate Relations Director Pedro Farre Lopez, Microsoft Iberia Director Arnedo Txema, National Association of Electronic and Telecommunications Industries (AETIC) President D. Edmundo Fernandez participated from the Spanish side. DCM Hugo LLorens was accompanied by Economic Counselor James Dudley, David Carson, Michael Shapiro and Carl Schonander. ¶6. (C) DCM opened by saying that the USG remained committed to working with Spain to find ways to combat internet piracy, and that he hoped the conference and the lunch would prove to be two fora that contributed to achieving this goal. The lunch exposed once again the divisions between the content providers and the ISPs. The AETIC representative (AETIC represents major ISPs such as Telefonica) emphasized that no notice and takedown system for the internet could be developed without "legal security." Content providers complained that it was virtually impossible to obtain information from ISPs on customers suspected of trafficking in pirated property, and that ISPs were too slow to act against internet piracy. Complaints from the content providers were then directed to the Ministry of Industry, Tourism and Trade representative, Salvador Soriano. He said that the government remained committed to self-regulation among the stakeholders. Soriano acknowledged, however, that in the meantime a tremendous amount of piracy was taking place on the internet. He suggested that the government and stakeholders focus on developing a notice system for the internet, leaving takedown for later. CONFERENCE GENERATES MOMENTUM IPR INDUSTRY - GOVERNMENT MEETING NOVEMBER 13, 2007 -------------- ¶7. (C) Chief of Staff Juan Junquera Temprano and Subdirector General Soriano met with FAP Director General Jose Manuel Tourne and Promusicae President Antonio Guisasola on 11/13/07. (Note: EconOff received a read-out on this meeting from Tourne.) Tourne said that Junquera had agreed to work on the following measures: a) An amendment to the 2002 Information Society Law in Article 16.1 that would absolve ISPs of liability with respect to rights-holders if they acted pursuant to voluntary agreements with rights-holders. This would provide a measure MADRID 00002128 003 OF 006 of legal security for ISPs with respect to lawsuits generated by rights-holders, although presumably ISPs would still be liable for "consumer" generated lawsuits. The point of this legal amendment would be to encourage content provider-ISP anti-piracy agreements. b) Contracts between ISPs and customers would include a clause stating that ISPs can suspend service to customers who are found to be infringing copyrights. c) A government-sponsored "urgent" negotiation on a notice process, leaving takedown for later. d) Assess the current "private copy" exception's negative impact and make clear to the public that peer to peer downloads are illegal. e) Encourage sectoral meetings with a view to creating a climate favoring the protection of content on the internet. ¶8. (C) Comment: In principle these measures are positive. However, we have seen the Ministry of Industry, Tourism and Trade promise action to the content industry in the past and then fold when faced with opposition. Indeed, Tourne received an 11/14/07 phone call from Junquera saying that Senate approval would be difficult to obtain for the first measure. Rights-holders and the government have agreed on a low key approach for now. However, if the government wants to do something serious to protect content on the internet, it will have to withstand some criticism. HIGHLIGHTS FROM THE CONFERENCE -------------- ¶9. (U) For those who are interested in a conference agenda, please contact Carl Schonander at SchonanderCE@state.gov. Conference highlights follow below. Secretary of State SIPDIS for Telecommunications Francisco Ros -------------- Ros opened the conference. He spent a lot of time talking about the vast quantities of information on the internet. The Secretary of State emphasized the need for self-regulation among the stakeholders. He called for internet regulation which respected different business models, including a model based on traditional copyright law. Douglas Lippoldt Directorate for Science, Technology and Industry, OECD -------------- Lippoldt mentioned the OECD's emphasis on fostering innovation and shared tentative empirical findings suggesting a positive relationship between protection for IPRs and the flow of FDI. Michael Keplinger Deputy Director General WIPO -------------- Keplinger went through the fundamental tenets of the internet treaties and mentioned that WIPO has posted a guide to the treaties on its website. He said WIPO was committed to creating an IPR "culture". Tilman Luder Unit Chief DG Internal Market and Services European Commission -------------- Luder said that his Commissioner, Charles McGreevy, firmly believed that "less is more" and that the EU was therefore currently in an "evaluation mode" with respect to IPR legislation in Europe. He spent quite a bit of time reviewing a number of European cases that have to do with MADRID 00002128 004 OF 006 defining what a reproduction is. He said that the Commission was reviewing how effective ISPs were in preventing their services from being abused to commit copyright policy violations. Helen Montluc Head of Intellectual Property Office Ministry of Culture France -------------- Montluc said that President Sarkozy was interested in reducing internet piracy. The head of France's biggest music retailer, FNAC, was working with stakeholders on proposals. Montluc acknowledged that peer to peer file sharing caused "grave damages". She said that peer to peer file sharing must be curbed. The French government is considering whether to reform the criminal code to provide for "proportional sanctions" more along the lines of traffic fines, rather than the maximum of three years in jail and/or a euros 300,000 fine that the law currently permits. David Carson Associate Register U.S. Copyright Office -------------- Carson gave two presentations focusing on the main provisions of the Digital Millenium Copyright Act (DMCA) and ISP liability. He reviewed other legislation affecting ISP liability and the Napster and Grokster cases. Carson emphasized that consumers must believe that there will be consequences for illegal downloading if piracy is to be stemmed. He also suggested that because ISPs are now getting into the content business, their traditional reluctance to accomodate rights-holders' concerns may be receding. Pedro Farre Corporate Relations Director Society of Authors and Editors (SGAE) -------------- Farre made an impassioned plea for understanding that "content is king" on the internet, i.e. without content nobody would buy internet services. He noted that cultural industries represented 4% of Spain's GDP. Farre complained that the government was not doing enough to stop internet piracy. He said that the copyright levies that SGAE collects on the sales of blank CDs and some electronic devices were only a "palliative" compared with the losses his members were suffering as a result of piracy. Barbaro Navarro Antipiracy Director NBC Universal Spain -------------- Navarro shared information on successful anti-piracy publicity campaigns in the UK. Txema Arnedo IP Development Director Microsoft Spain and Vice President Business Software Alliance (BSA) Spain -------------- Arnedo said that Spain's software piracy rate of 46% compared unfavorably with 20% in the U.S. Georg Herrnleben Director for Central and Eastern Europe, BSA -------------- Herrnleben said that the software piracy rate in Spain in 2006 was 10% higher than the EU average, 12% higher than the western European average, 11% higher than the world average, and 25% higher than the U.S. average. Herrnleben attributed this to the fact that small and medium sized businesses are dominant in Spain, and that they do not take software MADRID 00002128 005 OF 006 seriously. He also said that retailers, eager to sell computers, often loaded machines with free software to entice customers. However, the BSA representative mentioned that the Spanish government had conducted with BSA awareness campaigns, and that the police had been cooperative. Thierry Desurmont Vice President SACEM France -------------- Desurmont called peer to peer file sharing "hugely detrimental". He emphasized that nothing could be done about the problem without real ISP collaboration. He said the EU's 2000 E-commerce directive needs to be "reopened" because it does not impose effective responsibility on ISPs. Luis Javier Martinez Director of Pixbox Distribution Platform Telefonica -------------- Martinez acknowledged that content providers (Martinez was a former Walt Disney executive before taking his current position at Telefonica) had been slow to pass on some of the savings that the new technologies made possible to consumers, thereby contributing to engendering a consumer backlash against content providers. However, he insisted that the current culture of "gratis total" (totally free product over the internet) was not sustainable. Antonio Guisasola President Promusicae -------------- Guisasolo noted that in 2006 there was only euros 22 million worth of legal internet music sales in Spain, and that 87% of those sales were in the cell phone market. He said this was because cell phone P2P file sharing does not work so consumers were compelled to go the legal route for music. Guisasola said that the big French music retailer, FNAC, did no internet busines in Spain because internet piracy levels were too high. Victor Domingo President Internet Users Association (AI) Spain -------------- Domingo said he wanted to issue a "declaration of innocence" on behalf of internet users. He rejected the notion of illegal internet downloads, saying that the levy system compensates creators. Besides, judges had consistently ruled in favor of internet users. He rejected the notion that consumers believed in totally free content and referred to the relatively high prices Spanish consumers pay for internet service connections. Juan Junquera Temprano Chief of Staff to Secretary of State for SIPDIS Telecommunications Francisco Ros Ministry of Industry, Tourism and Trade -------------- Temprano made it very clear that the levy system did not compensate for peer to peer file sharing. (Note and Comment: The levy system theoretically exists to compensate rights-holders for the private copies that consumers are allowed to make in Spain. However, the copy has to be from a legally acquired product. Material obtained through peer to peer file sharing is not legally acquired so by definition it is not a copy and therefore outside the levy system. Temprano's statement was important because there is a tremendous amount of damaging misinformation in Spain about the levy system. End Note and Comment) Jose Manuel Tourne MADRID 00002128 006 OF 006 Director General Antipiracy Federaton (FAP) -------------- Tourne said that certain aspects of Spanish law had created a "perfect storm" for the copyright-based industries. Notably, he said that the "effective knowledge" requirement, i.e. a court order rather than information provided by a rights-holder, for ISPs to act against infringers puts an undue burden on the movie and music industries. Tourne said that in the UK, Germany and France, the law permitted rights-holders to provide "effective knowledge" to rights-holders. In Italy, "effective knowledge" is not defined according to Tourne. The FAP representative said that within the EU, Finland has a functioning notice and takedown system. Edmundo Fernandez Electronics and Environment Director (AETIC) -------------- Fernandez, representing ISPs, said his organization remained willing to discuss internet issues with rights-holders. However, he said that AETIC demanded "legal security" for its members. COMMENT -------------- ¶10. (C) Clearly, there are limits as to what can be achieved between now and Spain's national elections, which will be held in March 2008. However, we will be consulting closely with industry and the government to see what can be done. Certainly the kinds of actions described in para. 8 would be welcome. Embassy appreciates David Carson's and Michael Shapiro's participation in the bilateral and conference as they helped highlight the USG's intense interest in internet piracy. While the GOS will continue to cite political limits on what it can achieve, the government is aware that it needs to show some progress for Special 301 purposes. LLORENS