SPAIN: UPDATE ON INTERNET PIRACY ISSUES

UNCLAS SECTION 01 OF 03 MADRID 001150 SENSITIVE SIPDIS STATE FOR EEB/TPP/IPE AND EUR/WE STATE PASS USTR D.WEINER STATE PASS COPYRIGHT OFFICE USDOC FOR 4250/DON CALVERT USDOC ALSO FOR PTO E.O. 12958: N/A TAGS: KIPR ETRD ECPS KCRM SP SUBJECT: SPAIN: UPDATE ON INTERNET PIRACY ISSUES REF: A. MADRID 520 ¶B. MADRID 477 ¶C. STATE 45107 SUMMARY ¶1. (SBU) Since being placed on the Special 301 Watch List six months ago, the GOS has focused on encouraging negotiations between the Internet Service Provider (ISP) association and the Anti-Piracy Coalition of copyright holders and their representatives. The parties are trying to agree on a formula to curb illegal and infringing activity on the Internet, especially peer-to-peer (P2P) downloads. After several months of work, the ISPs' association, Redtel, has put forward a proposal for a limited graduated response regime. Coalition members have shown little enthusiasm for Redtel's offer but have characterized it as better than no offer and agree that it can serve as a basis for further discussion. The government continues to urge the parties to reach agreement, stating that it is prepared to make the legislative and regulatory reforms needed to implement a graduated response system if and when the parties jointly present a framework. ¶2. (SBU) At the same time, the government believes that any legislative initiative will fail unless it has the full support of both ISPs and rights-holders, and is thus waiting for the parties to agree on what they can support and what they need the government to do. Members of the Anti-Piracy Coalition disagree among themselves on some aspects of the ongoing negotiations but are united in their desire to see the government take a stronger, more proactive stance. Meanwhile, the Ministry of Culture is preparing to unveil a 2-million euro anti-piracy public awareness campaign develnpgd in coordination with copyright-dependent industries, and the Ministry of Industry is hosting in late November an international conference on Intellectual Property in the Digital Environment that will include USG participation. End Summary. PRIVATE SECTOR TRIES TO NEGOTIATE AN ANTI-PIRACY FRAMEWORK ¶3. (SBU) Econcouns, Econoff, and FSN Stecialist met October 28 with Ministry of Clture and Ministry of Industry, Tourism, and Commerce officials in a me%ting of our bilateral working group to discuss progress on IPR and especially the fight against Internet piracy. Tie GOS/s failure to take effective action against this problem was a key factor in the USG decision to place Spain on t(e Special 301 Watch List in April 2008. $Since before the decision was taken, the government has encouraged negotationw between the association of InterNe4 Service Providers (Redtel, comprisingQ Telefonica and three other major te|ecommunications companies that together provide 90% of the country,s interne| cerv)ce) and the Anti-Piracy Coalition of rights-holders, which includes representatives of the music and film industries and copyright management entitme{. in September, Redtel put forward a proposcl for a limited graduated response regime, in which a newly creqted governent commission would accept complaints about infringements on the IntEr.et and send out notices. Individuls and entities failing to cease their infringing activities after two notices wound be subject to sanctions inclulingfines an blocking or removal of offending situs. However, the remedy coudd0uNder no crcuospances include denial of Internet acCess to offenders, a stipulation that severel members of the Coalition find una#ceptable. Other members, including the Ootion Picture Association (MPA),are 7illing in principle to accept this resvriction if the other sanctions are severe enough. At the same dime, MPA has!characterized Redtel's proposal aw inSu&ficient and probably unworkable, arging"that the kind of government"mec`anism envisioned would be extremelyM cumbrsome and thus unable to cope with thm |arge amount of complaints a~d send the requisite notificatiOn3. However.Q Coalit)on members decided to akcept Redtel's proposal as a basis for futher jegodiAtions, though most celiavm that it will require a great deal of work to turn0iT into a mutually `ccettib|e a'reement. MADRID 00001150 002 OF 003 ¶4. (SBU) Both Redtel and the government also stress that any agreement on anti-piracy measures must include a commitment by rights-holders to make more of their products legally available on the Internet to reduce users' incentive to download illegally. There is currently some music legally available on the Internet in Spain, but an acute shortage of legal American films. The local MPA representative says his association is willing to negotiate a statement of general support for making more films available online, but that any commercial agreement must be negotiated between individual distribution companies and individual ISPs. GOVERNMENT WAITS FOR PRIVATE SECTOR RESULTS ¶5. (SBU) Salvador Soriano Maldonado, Deputy Director General for Information Society Services in the Ministry of Industry, Tourism, and Trade, has told post on several occasions that the Ministry has been pressing Redtel and the Coalition to reach agreement. Other ministry officials have echoed this point. The government, he said on October 28, is aware that legislative and regulatory reforms are needed to improve the climate for anti-piracy enforcement, but any such measures are likely to be unpopular and will only succeed if they have the full support of the ISPs and rights-holders. Accordingly, the government is waiting to see what kind of framework agreement the parties reach, and then plans to introduce legislation needed to implement it. Spain, he added, is also following with great interest efforts under way in France and the UK to institute graduated response regimes, and hopes to learn from their example and adapt some of the measures those countries adopt to Spanish conditions. Guillermo Corral van Damme, Director General for Policy and Cultural Industries at the Ministry of Culture, said the government is aware of the seriousness of the piracy problem and the need for strong action but that the private sector parties must first at least identify some points of agreement. Based on his conversations with several of the players, he believes they may reach an agreement by the end of the year. PUBLIC AWARENESS - A STEP IN THE RIGHT DIRECTION ¶6. (U) According to Corral and Deputy Director for Intellectual Property Clara Mapelli Marchena, the Ministry of Culture is poised to launch a comprehensive anti-piracy public awareness campaign. There is general agreement that part of Spain's problem is an attitude prevailing among the public that the Internet is a free domain where anything goes, and that such activities as P2P downloads are a natural right that harm no one. The government-funded media campaign, developed in coordination with copyright management entities and other stakeholders at a budget of 1.95 million euros, will be especially oriented towards families, students, and schools and will make available teaching materials. Culture Minister Cesar Antonio Molina will launch the campaign on November 25 to coincide with the Ministry of Industry-sponsored International Conference on Intellectual Property in the Digital Environment, which will bring together government officials and private sector representatives from Europe and the U.S. to discuss digital technology and protection of IPR. Several USG IPR experts are expected to attend. COMMENT ¶7. (SBU) Because the GOS says the ISPs and content providers must agree on what measures it should take, it has not yet undertaken any of the legislative or regulatory actions we called for in the Special 301 demarche. Ministry of Industry officials remain skeptical concerning the prospects of amending the Prosecutor General's (Fiscalia) 2006 Circular that stated that P2P downloads constitute a criminal offense only when a commercial profit motive can be established. They do, however, acknowledge that perhaps more can be done in a public education context to correct the widespread public misimpression that the Fiscalia said P2P downloads were legal and permissible. Likewise, any attempt to amend the Law on MADRID 00001150 003 OF 003 Information Society Services (LSSI)'s standard - requiring ISPs to have "actual knowledge" that material on their sites is illegal for them to be held liable - is on hold pending the outcome of the negotiations. It may be included in the package the government develops to implement the private-sector agreement, assuming the ISPs agree. The same is the case with the recommendation to make it legal for ISPs to identify clients and internet protocol addresses in the context of civil suits brought by rights-holders. Thus, content providers continue to find both the criminal and civil routes blocked or at least severely limited when they seek judicial relief against piracy. ¶8. (SBU) It is unclear when Redtel and the Coalition will reach an agreement. The government seems to be more optimistic than we think may be warranted based on our conversations with Coalition members. We have consistently told our government interlocutors at various levels that we will need to see concrete measures and results soon to consider removing Spain from the Watch List. We were encouraged to hear that during President Zapatero,s New York visit in September, he met with U.S. private sector leaders and was asked about combating piracy. (Note: Post had encouraged AmCham to invite MPAA to the meeting. End Note.) He was reportedly concerned enough that he instructed the Minister of Industry, Tourism, and Trade to find a solution to the problem by year's end. The November 12-13 visit to Spain of MPAA Chairman and CEO Dan Glickman may also serve to encourage the GOS. End Comment. AGUIRRE