Intellectual property law change and process: The case of Spanish Ley Sinde as policy laundering
First Monday

Intellectual property law change and process: The case of Spanish Ley Sinde as policy laundering by Katharine Sarikakis and Joan Ramon Rodriguez-Amat



Abstract
This paper argues that the notion of ‘policy laundering’ can be applied to current attempts for the establishment of a new copyright legal order and takes as example the changes to intellectual property law in Spain. The article discusses the complexity of interactions between international and domestic relations within and beyond formal structures of policy–making in amending the legal framework in Spain: First, European directives set the pace and context as well as the legitimacy to initiate policy reform at the national level. At the same time, it is the catalytic role of other external actors and specifically the U.S. Embassy in Spain and the 301 Special Report in steering and re–activating policy change towards a particular direction. Internal developments, a combination of reactions from an — unintended — public debate and opposition offered by leading cultural actors as well as change of government, caused challenges to the passing of the law. The main focus of Law Sinde, the Spanish IP law as it became known, was to tighten control around individual usage of copyrighted material. To facilitate this, its strategy was to control technological use by intervening on three distinct levels, on the level of the user, the level of institutions and the level of jurisdiction. The IP law change is not simply a case of national law, but one that highlights global governance interdependence and the struggle for hegemony among corporate, state and civil society interests.

Contents

1. From global to local in intellectual property
2. Towards a definition of ‘policy laundering’
3. Methodology
4. The European context
5. The Ley Sinde and the Bill of Sustainable Economy (BSE)
6. Ley Sinde as a case of policy laundering

 


 

1. From global to local in intellectual property

Concerns about and efforts to regulate users’ behaviour related to the distribution or use of copyrighted material are global. Historically, intellectual property (IP) regimes have been part of the strategic protection of national cultural environments and of intellectual production involving industrial creations and strategic research; therefore, IP regulation falls typically within domestic spaces of regulation. Emerging demands to control the ‘fate’ of content in digital communication environments gives rise to the emergence of a new IP regime globally: demands for regulatory initiatives by policy–makers, stakeholders and users are entangled in a complex network of practices that make visible the contestations, needs and interests involved in the making of new IP regulatory regimes globally and nationally. Emerging literature observes contested strategies by states in introducing unpopular policies in the field and characterises them as cases of ‘policy laundering’ to denote lack of democratic accountability in the process. This paper focuses on the process of the Spanish Royal Decree 1889/2011, also known as Ley Sinde (Sinde Law). This is an exemplary case of the ways in which global market interests spill over into the domestic spheres of national regulatory structures and, eventually, challenge established institutional and legal frameworks. In particular, the paper argues that permeability of regulatory change is achieved across a variety of sociocultural milieus, despite contestation and resistance by civil society. The role of global hegemonies in this process is instrumental in cementing change as part of their international relations ‘portfolio’. National industrial alliances, and in this case the music and film industries of the U.S. in particular, represent their interests within the framework of international relations with the effect that they are then represented in jurisdictional territories outside the national. Despite claims to the contrary, generated by and within the World Summit of Information Society and subsequent ‘multi–stakeholder’ fora, the domain of concrete policy–making in the communications industries has not resulted in greater accountability and transparency nor greater democratisation of the decision–making process. As it is discussed further on, a combination of political economic, legislative and political pressures have given rise to and shaped the outcome of law change in the country. Concretely, political pressure by the U.S., (broad) legislative requirements of the EU and domestic politics largely affected by the global financial crisis have functioned as operationalizing motors towards unpopular policy change. Public and civil society resistance has not succeeded in halting the process — but delayed it and generated public debate and, may have generated, consequently, greater educational value among publics unaware of copyright and IP issues.

 

++++++++++

2. Towards a definition of ‘policy laundering’

In the field of media and communication, jurisdictions are sometimes challenged by the course of developments that take place outside the range of the national decision–making processes. Democratic institutions and processes at the state level are challenged by what has been explored as ‘policy transfer’ and ‘policy laundering’ (Sarikakis, 2012a). Although both concepts have been used interchangeably, ‘policy laundering’ refers to the adoption of policies, which involve controversial norms by circumventing established political and legal procedures. Policy laundering, thus, is an emerging concept that refers to a particular form of policy transfer. The growing interest in understanding how supra–national policies influence national legislation has provided some broad understanding of how the directives set broad principles with the aim of ‘harmonisation’ both, at global and at EU level. Beyond that, the particular scholarly exploration of policy laundering phenomena in media governance and its effects on democracy began only recently (Sarikakis, 2012b). Drawing upon relevant academic literature and other reports, certain features emerge as indicators of policy laundering. First, a controversial issue or unpopular legislation is ‘disguised’ within a loosely defined regulatory package; second, it presents itself as an external imperative that either ‘surpasses’ the capacity of a national government to ‘resist’ it or it is presented as an obligation to the international community, through prior agreements laws and other forms of commitment; third, it is usually passed in a ‘fast–track’ process with as little publicity as possible.

The first strategy ‘frames’ new laws as an ‘update’ of existing ones, presenting incremental changes to previous regulation that facilitate the rooting of the new particular norm with minimum debate. As a chain of minor changes in the currently accepted laws, the new rule can be implemented without attracting public attention. In occasions, the law passes within a major package of measures that serve a broader and ‘unsuspected’ goal. The second feature refers to the policy as a product of an international decision. Yu (2010) identifies three forms of policy laundering: first, passing policy within an international treaty that cannot be utterly negotiated, the treaty is obligatory and includes the particular unpopular clause; second, as part of a bilateral agreement: weaker countries have to agree on measures favoured by stronger ones; and third, when the policy appears similarly in several countries which makes the acceptance of the measure customary (other countries follow similar patterns of law implementation). All these forms of implementation of the law seem to displace the responsibility outside the scope of the regulatory structures of the State while constructing it as the victim of an international trend. The third indicator is that the measure is strategically defined to ensure quick ratification and implementation (Herman and Gandy, 2006) and avoid prolonged, public debate. For this, it is useful to schedule deliberation and approval of the law under circumstances of temporal ‘marginality’ in national parliaments — such as just before holidays, late in the day and so on. These characteristics are considered problematic for democratic governance as they raise serious questions about the level of accountability, representation of diffused interests and due process in public policy. They constitute ‘red flags’ for possible power abuse.

In the field of IP, we have witnessed social mobilisation at a global scale against national and international policy initiatives, partly due to their secretive process. The Spanish case is of particular interest because it combines at a public policy level, both the formal and informal dimensions of influencing its direction, as well as because the controversial changes it generated are situated firmly within broader IP policies of a global scale. These were ‘defeated’ at the level of distinct policies, but their ‘spirit’ has not. The secretive character of the Bill was exposed by social media activity which gave voice to public discontent and caused significant delay. This paper is considering not these mobilisations, but the specific interactions among core actors in the policy process. Yet, it is because of these mobilisations that publicity was generated about the case that made documentation available and crucial to the study of the case.

 

++++++++++

3. Methodology

This paper traces policy–making processes in a case study design. Process tracing is a method — or series of methods — that allow the study of causal mechanisms. Our paper is based on the study of a specific case of law reform in which we seek to identify and situate entities (actors), actions and historical context, so that meaningful explanatory accounts can be given. This particular case study constitutes one of identified cases that we are working with to build theory on the emergent copyright regime, whereby, we argue, policy laundering as a strategy for imposing law reform is becoming problematically common. Process tracing is not a unified or single method but is constituted by three main functions of theory testing, theory building and explaining outcomes. Process tracing here is understood in its function to explain outcomes (Beach and Pedersen, 2013) and is based on the detailed study of archives, other documents available in the public domain, to a. identify actors and their actions and, b. determine what the ‘observable manifestations’ are. Three types of documents were consulted and analysed: public records, media publications and internet sources in the form of blogs, analysis and other relevant material. Public records included legal texts, parliamentary debates and drafts of the law and shared with stakeholders before the final draft was approved by the Spanish Congress; the 301 Special Reports of the Office of the United States Trade Representative; media publications included several newspapers on the basis of the full coverage of the case across time and online publications that provided expert interpretations and reports on the implications of the drafted laws of the intermediate documents. Information from meetings among the bill authors and political authorities, as became publicly available. Finally,unique material deriving from the publication of El País and Wikileaks sourced original cables was used.

The paper activates a recent historical narrative as well to contextualise the developments of the Spanish Case within the broader series of regulation change in Europe and the U.S. It is however important to make a methodological note: the object of research, the degree of legitimacy and democratic praxis in communication policy–making, and especially when dealing with informal and concealed processes is highly elusive and the process prohibitive. Without the information gained by ‘whistleblowing’ and the publication of significant cables that were communicated part of international relations policy, this paper might not have been produced in this detail. The importance of freedom of expression is not only relevant for the civil society and civic life but also for the production of knowledge. Hence, the pieces of the puzzle of what constitutes ‘domestic’ policy and the degree of influence of private interests to the detriment of public interests in public policy is not only a political, but also an epistemological question scientists have not succeeded in settling yet.

 

++++++++++

4. The European context

The Anti–Counterfeiting Trade Agreement (ACTA) and United States domestic policies in the forms of the Protect Intellectual Property Act (PIPA) and Stop Online Piracy Act (SOPA) have been met by world–wide resistance in the streets and on the Internet. The reason is twofold: critics point to the stifling impact on freedom of expression and to the fact that they emerge as uncertain waves of regulation affecting those countries that find themselves in the process of updating regulation on the internet and for the protection of intellectual property. The Electronic Frontier Foundation stated: “SOPA and PIPA are really only the tip of the iceberg. The same forces behind these domestic U.S. laws have continued to both push for other states to pass similar domestic laws, as well as to secretly negotiate international trade agreements that would force signatory nations to conform to the same legal standards. The Anti–Counterfeiting Trade Agreement (ACTA), Trans–Pacific Partnership (TPP), Ley Doring (Mexico), Ley Sinde (Spain), Loi Hadopi (France) are only a few examples.” (Rodriguez and Sutton, 2012)

The regulatory change in Spain was drawn upon formal harmonisation requirements according to European Law and specifically Spain’s ‘response’ to two Directives concerning Internet regulation, the Telecoms Reform Package and the Copyright Directive. It was also activated in response to the specific direction of international relations between the United States Government, Spanish Government and external forces involved in the form of lobbies representing the audio–visual industry as well as the involvement of collecting societies. These lobbies had no formal ties to national or European policy–making, yet were involved in monitoring the process of change and. The Telecoms Reform Package constitutes the revised EU Telecoms Framework of 2002 and includes several directives [1]. As per European law, it is binding to all EU member states 18 months after it came into force, in December 2009. It leaves up to the National Authority the choice of form and methods to achieve these goals. The package refers to the minimum conditions for quality network transmission services, creates a new Body of European Regulators of Electronic Communications (BEREC) and gives permission to “restrict” end–users’ access to, or use of, services and applications through electronic communications. That is, member states are allowed to disconnect users in cases of illegally downloading copyrighted material, following due regulation, ‘presumption of innocence and fair and impartial procedure and effective and timely judicial review’ [2].

Further, the Copyright Directive [3] is the enactment of the WIPO Copyright Treaty (WTC) of 1996 in the EU and considered by some authors controversial leaving “the most important copyright problems of the digital environment unresolved” (Hugenholz, 2000). The combined transposition of the Directives has generated several regulatory changes in EU countries: U.K.’s Digital Economy Act (DEA) received Royal Assent in April and came to force in June 2010; in France the Loi Hadopi was adopted in May 2009 by the French Senate (Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet, or HADOPI). The Law Sinde explored here belongs to this wave of regulations in EU countries.

Not all laws passed the same way. There have been considerable differences in the process of implementation of the Directives. In the U.K., the 2010 Digital Economy Act (DEA) is not yet in full swing. Some of the measures against illegal downloading have been delayed. At the time of writing, these measures will not start until 2014 (Goodwins, 2012). ISPs are going to court, unhappy with the measure that might include passing on information about their clients and eventually suspending their Internet access. At the same time OfCom is now ‘encouraging’ a self–regulatory approach by the major ISPs. The DEA is also controversial because it was given one hour of Parliamentary discussion and passed the last day of Parliament before the General Election in 2010 without enjoying weeks of scrutiny usually given to complex legislation (Meyer, 2010). The law passed, but the authorisations of blocking Internet access through ISPs activity given by the European Directive is, in practice, still unresolved.

The French case is similar: HADOPI updated DADVSI of 2006 (Loi relative au Droit d’Auteur et aux Droits Voisins dans la Société de l’Information) concerning the right of authorship and neighbour rights in the information society. The Conseil Constitutionnel (Constitutional Council of France) declared that some of the measures in the first HADOPI were contrary to the Constitution, so that the law had to be modified. Some refer to it as the Loi Hadopi 2. The new authority is composed of a college and a committee for the protection of copyright: “The task of the Committee for the protection of copyright is to trigger the new warning mechanisms and administrative penalties incurred by Internet users who have failed to monitor access to the Internet” [4]. These bodies mediate between the provider of IP addresses to devices suspected of engaging in illegal downloading and the provider of Internet access in charge of identifying users and ultimately removing their access to the Internet. Ley Sinde would have taken perhaps the same path as the French law, had it not been revealed that there was at least another actor intervening in the process.

Special 301 Report is a document prepared annually by the Office of the United States Trade Representative (USTR) and submitted to the U.S. Congress. USTR undertakes annual surveys of foreign countries’ IP laws and policies. The statute of the report establishes that it must identify the countries judged to have inadequate IP laws, according to desired U.S. standards. The report includes a list of “Priority Foreign Countries”, a “Priority Watch List” and a “Watch List” depending on the “adequateness and effectiveness” of their intellectual property regimes. The purpose of the report is to identify barriers to U.S. companies and products due to IP laws. There are various measures instigated by this assessment. They may be unilateral trade sanctions imposed by the U.S. government. Alternatively, the U.S. may initiate dispute settlement proceedings at the World Trade Organisation (WTO) if a given country does not comply with the Agreement on Trade–Related Aspects of Intellectual Property Rights (TRIPS) (Enigmax, 2012).

From 2007 to 2011, this report referred to Spain as one of the countries of concern. From 2008 to 2011, Spain was included in the “Watch List”:

“The United States is concerned by the Spanish government’s inadequate efforts to address the growing problem of Internet piracy, described by U.S. copyright industries as one of the worst in Europe (...) The United States will continue to work closely with Spain to address these IPR enforcement issues during the next year.” [5]

From year to year, the tone changes: in 2009, “the United States strongly urges that the Spanish Government takes prompt and significant action” [6]; whereas in 2010 “Spain’s existing legal and regulatory framework has not led to cooperation between Internet service providers (ISPs) and rights holders to reduce online piracy (...) The United States urges Spain to continue taking positive steps to address Internet piracy, and will closely monitor progress in the next year” [7].

In the 2010 Report (USTR, 2010), there are some indications of change in Spanish policies and right before its publication, Spain joined the WIPO Performances and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty (WTC) together with 18 other countries and the EU. In 2011, the Report states: “Spain took action to address the problem of copyright piracy over the Internet by passing legislation that will provide a mechanism for rights holders to remove or block access to infringing content online” [8]. Spain remained on the “Watch List” until the Report of 2012 (USTR, 2012). Law Sinde came into force in March 2012; the Special 301 Report appears always on 30 April.

The U.S. concern with Spain’s regulatory approach was not limited to the report. On 3 December 2010 El País (Elola, 2010) published telegrams sent from the U.S. Embassy to the Ministry of Culture of Spain right after they were aired by Wikileaks with this message from February 2008:

“We propose to tell the new government that Spain will appear on the Watch List if it does not do three things by October 2008. First, issue a [Government of Spain] announcement stating that Internet piracy is illegal, and that the copyright levy system does not compensate creators for copyrighted material acquired through peer–to–peer file sharing. Second, amend the 2006 “circular” that is widely interpreted in Spain as saying that peer–to–peer file sharing is legal. Third, announce that the GoS [Government of Spain] will adopt measures along the lines of the French and/or UK proposals aimed at curbing Internet piracy by the summer of 2009.” (Anderson, 2012)

The Spanish law of Intellectual Property (Royal Decree 1/1996 12 April) was the product of a series of previous laws and adjustments to European regulation: Law 22/1987; Law 20/1992; and Law 16/1993 based on the European Directive 91/250/CEE (1991). Further, Law 43/1994 implemented Directive 92/100/CEE (1992). Law 27/1995 the Directive 93/98/CEE (1993) for the harmonization of the rights of author and certain related rights; and finally Law 28/1995 for the incorporation of the Directive 93/83/CEE on rights of authorship in satellite radio and cable distribution. European directives have brought about change in the transformation of the Spanish regulatory framework, but intellectual property regulation in Spain has largely remained the same. Its periodic updates (22/2003, 19/2006, 3/2008) left the fundamental concepts untouched and incorporated “nuances related to the new environment in which the works are created and exploited” [9].

One of the aspects of Spanish regulation on intellectual property to which the U.S. objected was the Tax for Private Copy (Impuesto por copia privada) considered in Law 22/1987 for Intellectual Property. This levy allowed the copying of copyrighted material for private use in exchange of a levy on products and devices needed for the reproduction of copyrighted works. It was progressively improved in parallel to technological changes: with the entry of CDs and DVDs into broad market consumption, the law included those new technologies, as it did later with the mp3 players and the incorporation of mp3 players into mobile phones. The Tax for Private Copy, also known as the Digital Canon, was abolished in December 2011; although in reality the levy was turned from a direct tax on products to a payment from the General Budget of the State [10]. Copyright holders receive an income through collecting societies (Sociedad General de Autores y Editores (SGAE), http://www.sgae.es/), which are funded directly from the national budget through the national tax system. In the past, the Digital Canon had been questioned on several occasions and in some cases by the Court of Justice of the EU [11]. The transformation of the Digital Canon took place in parallel with the Law Sinde: whereas the Digital Canon taxed material goods, the Law Sinde focuses on Internet practices, users and traffic. Hence Law 1.0 against piracy turned into Law 2.0, from the materiality of communication means to its digital dimension.

 

++++++++++

5. The Ley Sinde and the Bill of Sustainable Economy (BSE)

On 27 November 2009 at a press conference, Helena Salgado, Minister of Economy of the Spanish Government, announced the creation of the Bill of Sustainable Economy (BSE). The new regulation intended to change the “economic culture based on the brick for a more sustainable and socially fair economic system” (AML/SE, 2009). The Bill appeared exactly in the middle of the term of office of Zapatero’s government, two years before the next round of elections. The regulatory package was presented simultaneously as a formula against economic recession and as the first decisive step towards a new form of government and a new culture of action. The Bill was presented as the first visible measure of the Spanish government to fight a financial crisis.

The Bill of Sustainable Economy (BSE) is an extensive package of laws about renewable energy and the digitalization of public administration. The Bill included, initially, the creation of an executive body dependent on the Ministry of Culture with a function of “dealing with the conflicts of intellectual property and Internet”. It establishes a new body, the Commission of Intellectual Property, and is one of several changes in the Bill that involved anti–piracy measures in Internet traffic. The concrete sections on violations of copyright, intellectual property and Internet traffic have been referred to as the Law Sinde. This part of the Bill was rejected by the Economic Commission of the Spanish Congress on 21 December 2010 but the rest of the Bill of Sustainable Economy passed.

Ley Sinde was initially a set of modifications situated in the Annexes of the Bill. In the fourth title called “Instruments for the application and evaluation of the Bill of Sustainable Economy”, the 43rd Final Disposition modifies the law of Services of the Information Society and Electronic Commerce; changes the Royal Decree 1/1996 of the Law of Intellectual Property; and amends the law 29/1998 of Courts of Administrative appeals concerning the protection of intellectual property in the frame of the information society and the electronic commerce. The Bill, therefore, modified three regulatory areas: services of information society (Ley de Servicios de la Sociedad de la Información y de Comercio Electrónico, LSSI), intellectual property and administrative appeals.

The first of the modified aspects, the LSSI, applied the EU Directive of the Telecoms Package by which the Internet service providers can be incorporated, or called to cooperate by the courts in case of unlawful behaviour by their clients. Whereas in the first drafts such cooperation was compulsory, in the final draft (Royal Decree 1889/2011) Internet service providers are involved in one of the executive alternatives, as it will be described later in this paper.

The second change, the Law of Intellectual Property, consists of the establishment of the Commission of Intellectual Property, an executive body dependant of the Ministry of Culture and ratified by the Ministries of Economy and of Free Concurrence. The Commission is formed by two sections: section one veils for the adequate accomplishment of the Law of Intellectual Property and mediates in case of conflict between two parts; the second section can file charges in case of suspected unlawful behaviour and can start judiciary procedures and prevention measures in case it is necessary (blocking access to Internet in 48 hours with a last confirmation by the office judge).

As a consequence, the third area affects the jurisdiction of administrative appeals (article 122b of the law 29/1988, 13 April). BSE authorises the Courts of Administrative appeals to “... execute the acts adopted by the Second Section of the Commission for Intellectual property like interrupting the hosting of services of the information society or to retrieve contents that violate intellectual property as defined in the law 34/2002 of the Services of the Information Society and of Electronic Commerce” [12].

The Commission is a two–section organisation embedded in the Ministry of Education, Culture and Sports (Article 1). Section one has the function of mediation and arbitration on the concerns involving the Law of Intellectual Property (Article 2); this section is formed by three members chosen by the Minister of Education, Culture and Sports after proposal of the Ministries of Justice; Education, Culture and Sports; and the Ministry of Economy and Competitiveness. These three members are experts of recognized competence in matters of intellectual property. One of them is President of the Section (Article 3). Section two of the Commission of Intellectual Property safeguards the rights of intellectual property against unlawful profit making or harmful behaviour (Article 13). Section consists of a President — the Secretary of State for Culture — and four members approved by the Ministry of Education, Culture and Sports Industry; Energy and Tourism; Presidency; and Economy and Competitiveness (Article 14).

Whereas the functions of section one end in agreements between the affected parties or in the establishment of a fine according to a rated scale of tariffs, section two is entitled to take further measures. The procedures in section two can run parallel to the negotiations in section one and both can be activated simultaneously. Furthermore, in case the presumed unlawful user is not properly identified, the section can ask the judge for an authorisation to ask ISPs for client data. After such authorisation, the ISPs have 48 hours to provide identification information (Article 18/1). Once all parties are informed (user and Internet service provider) about the reasons and possible resolution measures, they have 48 hours to voluntarily take down unlawful content. If they refuse to do so, the section can suggest a resolution within a further 48 hours (Article 20). Responders will have five days to present conclusions (Article 21). Afterwards, section two passes sentence, and in case of unlawful contents, the user will have 24 hours to delete unlawful content; non–withdrawal means that the ISP hosting the unlawful content will have 72 hours to interrupt its service (Article 22). Section two will start a judiciary procedure in the courts of administrative appeals if content is not voluntarily withdrawn; the court will dictate authorisation or denial of measures imposed by section two (Article 23).

The three changes described above are coordinated to fit the functions of the newly created Commission of Intellectual Property. They appear as minor changes but authorise a new procedure that displaces the role of the judiciary authority to the end of the process with capacity to determine if there is, or is not, unlawful practice. The Commission of Intellectual Property is formed by officials appointed directly by the Ministries and is not part of the judicial body.

The configuration of these legal descriptions and the coming to force of the Commission has taken more than two years due to unexpected public visibility. Various factors contributed to this delay as well such as changes in the composition of the government, and the Ministry of Culture in particular. The delays were also in part due by input from the American Embassy as well parliamentary questions put to the Spanish Congress. In addition there were concerns expressed by the collecting societies, the press and major Web sites. The release of government documents by Wikileaks, and the organisation of resistance — from a variety of individuals and associations like ‘No les votes’ (http://www.nolesvotes.com/) — contributed to delays but did not succeed in stopping law Sinde.

 

++++++++++

6. Ley Sinde as a case of policy laundering

Policy laundering is a concept emanating largely in information policy activism. It aims to bring emphasis to policy processes that are strategically manipulated to conceal the real aims and scope of a given policy. In the Spanish case, three core strategies were identified that focus on institutional, temporal, and public manipulations: the tactic of ‘disguised’ policies, manipulative temporality and attribution to international demands. These strategies cover three aspects in the policy–making process. For a start, they aim at constructing a regime of faux legitimacy, by attributing the raison d’être of policy change in a particular direction as part of unavoidable obligations to external actors. Domestic political responsibility, on the one hand, and interdependence of private interests on the other are masked as abstract imperatives by the ‘global system’. Hence the normative legitimation vis–à–vis the public rests on misleading information. A critical element of this tactic is obscuring the real scope of the policy by ‘packaging’ it within a broader framework of policies that are only loosely connected to it. The Bill of Sustainable Economy provided the shell for a law that is bound to have a profound impact on civil liberties in Spain and which provide a legal precedence, together with HADOPI, in Europe. Moreover, the rushed manner though which the government attempted to pass the Bill without presenting it for adequate public and parliamentary scrutiny is a common feature in controversial policy–making.

We argue that Law Sinde is a case of policy laundering. The Bill of Sustainable Economy was partly intended to function as a ‘mask’ for incremental ‘updates’ in three different bodies of law (the Law of Services of the Information Society, the law of Intellectual Property and the law of Administrative appeals). It introduced a non–judicial body of executive power to determine, interpret and mediate legal infringements. The law would have probably passed unnoticed, had it not been for Internet associations that reacted publicly. Yet the government attempted to stop it from emerging in the political agora. The combination of formal and informal pressures as well as the nature of domestic politics in the country took an active role in the shaping of specific policy. Finally, the issue of temporal pressure: it took two years of struggle among several actors to pass the law, although the original intention was to approve without delay. Public debates, the changed composition of the Parliament in the middle of the process and the need for alliances in the Spanish ruling party caused further delays until November 2011 when the Popular Party (Partido Popular) obtained a wide majority in the chamber. The law passed without political alliances, discussion or negotiation in December 2011 and came into force in March 2012.

Law Sinde is significant because it provides a case of communication policy–making in Europe in direct conflict with commitments to transparency, accountability and democratic practice. Indeed, the context of a financial crisis and emergence of a global copyright regime are not to be underestimated. Economic issues gave rise to decreased sovereignty over national affairs, not by way of a consensus of an ‘exchange’ of privileges (as might be argued is the case of EU membership), but of restricted decision–making capacity. Political instability and the disturbance of social cohesion, through an increase in poverty and an undermining of earned rights in certain countries, produces conditions under which private and concentrated interests, in this case the audiovisual industries of the U.S. and certain European countries, come to the forefront in public policy objectives.

A certain displacement of the centres of debate and negotiation, and the international nature of the flow of interests — in combination with the time frame of implementation and the absence of transparency concerning the politicised contents of the law (like the Spanish Commission of Intellectual Property formed by politically appointed executives without judicial profile) — can be considered symptoms of policy laundering. In turn it creates a problem concerning the legitimacy of products of a non–egalitarian dialogue between global interests and domestic spaces of regulation.

It is often argued that ultimately the nation–state is the main motor for public policy, in spite processes of globalisation. This paper has showed that complexity is the rule in contemporary public policy–making, especially in fields of immense global political and economic significance, such as IP. On the one hand, state actions may not be in accordance with proclaimed principles of democratic accountability. On the other hand, international policy frameworks may provide parameters of policy, but not the exact direction. The Spanish case is a reminder of the importance of policy process forces have on policy regimes, such as the IP. At the same time, tactics concealing and manipulating the policy process — in spite of negative public opinion — raises questions about real levels of democratic governance in the national sphere. It also raises questions about the direction in which future IP policies might move, perhaps in conflict with public interests. In this case, the government’s intentions were not isolated from a broader process taking place on a global scale. First, European directives set a broad and specific pace for development of policies on intellectual property. Then, the U.S. Embassy in Spain and the 301 Special Report publicly expressed concerns of the U.S. government, and its interests, in relation to Spanish tolerances of illegal downloading and a lack of proper regulation. There indeed were issues with an outdated Spanish regulatory landscape on intellectual property protection. Within this framework, the Bill of Sustainable Economy established a new institution, the Commission of Intellectual Property, that provoked reactions from a variety of groups and individuals. Although public debate delayed final approval of the Law Sinde, it did not affect its outcome. Institutional change therefore is a mechanism for the legitimation of de facto changes applied by globally influential political and corporate actors. Institutional change is not about a neat ‘response to challenges of globalisation’ but serves a concrete function of operationalizing objectives of questionable legitimacy. End of article

 

About the authors

Katharine Sarikakis, Ph.D., is Professor of Media Industries, Media Organisation and Media Governance in the Department of Communication at the University of Vienna.
Web: http://www.sarikakis.info
E–mail: katharine [dot] sarikakis [at] univie [dot] ac [dot] at

Joan Ramon Rodriguez–Amat, Ph.D., is Assistant Professor at the Department of Communication at the University of Vienna.
E–mail: Mon [dot] rodriguez [at] univie [dot] ac [dot] at

 

Notes

1. Directive 2009/140/EC at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0037:0069:EN:PDF, Directive 2009/136/EC at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:en:PDF and Regulation No 1211/2009 at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0001:0010:EN:PDF.

2. PE–CONS 3677/6/09 REV 6, p. 30, at http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST%203677%202009%20REV%206.

3. Directive 2001/29/EC also known as InfoSoc Directive; see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF.

4. HADOPI, 2009, paragraph 4.

5. USTR, 2008, p. 44; see http://www.ustr.gov/about-us/press-office/reports-and-publications/archives/2008/2008-special-301-report.

6. USTR, 2009, p. 31; see http://www.ustr.gov/about-us/press-office/reports-and-publications/2009/2009-special-301-report.

7. USTR, 2010, p. 37; see http://www.ustr.gov/webfm_send/1906.

8. USTR, 2011, p. 6; see http://www.ustr.gov/webfm_send/2841.

9. “La reforma, por tanto, no altera el concepto tradicional de los derechos de reproducción, distribución y comunicación pública, sino que introduce los matices derivados del nuevo entorno en el que se crean y explotan las obras y las prestaciones”; Boletín Oficial del Estado (BOE) 162, p. 25,562. See http://www.boe.es/boe/dias/2006/07/08/pdfs/A25561-25572.pdf.

10. “Se procede a la supresión de la compensación equitativa por copia privada, que será sustituida por un pago a cargo de los Presupuestos Generales del Estado, cuyo procedimiento se desarrollará reglamentariamente.” Boletín Oficial del Estado (BOE) 315, p. 146,577. See http://www.boe.es/boe/dias/2011/12/31/pdfs/BOE-A-2011-20638.pdf.

11. Court of Justice of the European Union (CJEU), 2010, case C–467/08, at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008CJ0467:EN:PDF, and Ramírez at http://www.elmundo.es/elmundo/2010/10/21/navegante/1287647829.html.

12. “... ejecución de los actos adoptados por la Sección Segunda de la Comisión de Propiedad Intelectual para que se interrumpa la prestación de servicios de la sociedad de la información o para que se retiren contenidos que vulneren la propiedad intelectual, en aplicación de la Ley 34/2002, de 11 de julio, de Servicios de la Sociedad de la información y de Comercio Electrónico.” Boletín Oficial del Estado (BOE), 2011, p. 25,225. See http://www.boe.es/boe/dias/2011/03/05/pdfs/BOE-A-2011-4117.pdf.

 

References

AML/SE, 2009. “El Gobierno aprueba su nuevo modelo económico, del ‘ladrillo’ a la sostenibilidad,” 20 Minutos (27 November), at http://www.20minutos.es/noticia/575759/0/gobierno/modelo/economico/, accessed 29 October 2012.

N. Anderson, 2012. “How the US pressured Spain to adopt unpopular Web blocking law,” Ars Technica (5 January), at http://arstechnica.com/tech-policy/2012/01/how-the-us-convinced-spain-to-adopt-internet-censorship/, accessed 29 October 2012.

D. Beach and R.B. Pedersen, 2013. Process–tracing methods: Foundations and guidelines. Ann Arbor: University of Michigan Press.

Boletín Oficial del Estado (BOE) 162, 2008. “LEY 23/2006, de 7 de julio, por la que se modifica el texto refundido de la Ley de Propiedad Intelectual, aprobado por el Real Decreto Legislativo 1/1996,” pp. 25,561–25,572, at http://www.boe.es/boe/dias/2006/07/08/pdfs/A25561-25572.pdf, accessed 7 May 2013.

Court of Justice of the European Union (CJEU), 2010. “Judgment of 21.10.2010 — Case C–467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE),” at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008CJ0467:EN:PDF, accessed 7 May 2013.

J. Elola, 2010. “EE UU ejecutó un plan para conseguir una ley antidescargas,” El País (3 December), at http://www.elpais.com/articulo/espana/EE/UU/ejecuto/plan/conseguir/ley/antidescargas/elpepuesp/20101203elpepunac_52/Tes, accessed 29 October 2012.

Enigmax, 2012. “US threatened To blacklist Spain for not implementing site blocking law,” Old Number 7 Studio’s (5 January), http://www.oldnumber7.com/tag/sinde-law/, accessed 29 October 2012.

R. Goodwins, 2012. “DEA anti–piracy measures delayed until 2014,” ZDNet (26 April), at http://www.zdnet.co.uk/news/intellectual-property/2012/04/26/dea-anti-piracy-measures-delayed-until-2014-40155111/, accessed 29 October 2012.

Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI), 2009. “Decision n° 2009–580 of June 10th 2009. Act furthering the diffusion and protection of creation on the Internet,” at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2009580DC2009_580dc.pdf, accessed 7 May 2013.

B.D. Herman and O.H. Gandy, Jr., 2006. “Catch 1201: A legislative history and content analysis of the DMCA exemption proceedings,” Cardozo Arts & Entertainment Journal volume 24, number 1, pp. 121–190, and at http://cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2024/Issue%201/Herman.pdf, accessed 25 February 2014.

B. Hugenholz, 2000. “Why the copyright directive is unimportant and possibly invalid,” European Intellectual Property Review, volume 11, pp. 501–502, and at http://www.ivir.nl/publications/hugenholtz/opinion-EIPR.pdf, accessed 29 October 2012.

D. Meyer, 2010. “UK copyright law to be changed ‘without scrutiny’,” ZDNet (16 March), at http://www.zdnet.co.uk/news/mobile-it/2010/03/16/uk-copyright-law-to-be-changed-without-scrutiny-40088327/, accessed 29 October 2012.

M. Ramírez, 2010. “El Tribunal de Justicia de la UE pide a España que cambie el canon digital,” El Mundo Digital (21 October) at http://www.elmundo.es/elmundo/2010/10/21/navegante/1287647829.html, accessed 29 October 2012.

K. Rodriguez and M. Sutton, 2012. “Internet blackout day fires up digital rights activism around the world,” Electronic Frontier Foundation (19 January), at https://www.eff.org/deeplinks/2012/01/internet-black-out-day-fires-digital-rights-activism-around-world, accessed 1 November 2012.

K. Sarikakis, 2012a. “Cities as geopolitical spaces for the global governance of culture,” In: H.K. Anheier and Y.R. Isar (editors). Cultures and globalization: Cities, cultural policy and governance. London: Sage, pp. 17–31.

K. Sarikakis, 2012b. “Securitization and legitimacy in global media governance: Spaces, jurisdictions, and tensions,” In: I. Volkmer (editor). Handbook of global media research. London: Wiley–Blackwell, pp 143–155.
doi: http://dx.doi.org/10.1002/9781118255278.ch9, accessed 25 February 2014.

United States Trade Representative (USTR), 2012. “2012 Special 301 Report,” at http://www.ustr.gov/sites/default/files/2012%20Special%20301%20Report_0.pdf, accessed 1 November 2012.

United States Trade Representative (USTR), 2011. “2011 Special 301 Report,” at http://www.ustr.gov/webfm_send/2841, accessed 1 November 2012.

United States Trade Representative (USTR), 2010. “2010 Special 301 Report,” at http://www.ustr.gov/webfm_send/1906, accessed 1 November 2012.

United States Trade Representative (USTR), 2009. “2009 Special 301 Report,” at http://www.ustr.gov/about-us/press-office/reports-and-publications/2009/2009-special-301-report, accessed 1 November 2012.

United States Trade Representative (USTR), 2008. “2008 Special 301 Report,” at http://www.ustr.gov/about-us/press-office/reports-and-publications/archives/2008/2008-special-301-report, accessed 1 November 2012.

United States Trade Representative (USTR), 2007. “2007 Special 301 Report,” at http://www.ustr.gov/sites/default/files/asset_upload_file230_11122.pdf, accessed 1 November 2012.

P.K. Yu, 2010. “The political economy of data protection,” Chicago–Kent Law Review, volume 84, pp. 777–801, and at http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3716&context=cklawreview, accessed 25 February 2014.

 


Editorial history

Received 9 August 2013; revised 29 January 2014; accepted 11 February 2014.


Creative Commons License
“Intellectual property law change and process: The case of Spanish Ley Sinde as policy laundering” by Katharine Sarikakis and Joan Ramon Rodriguez–Amat is licensed under a Creative Commons Attribution 4.0 International License.

Intellectual property law change and process: The case of Spanish Ley Sinde as policy laundering
by Katharine Sarikakis and Joan Ramon Rodriguez–Amat.
First Monday, Volume 19, Number 3 - 3 March 2014
http://www.firstmonday.dk/ojs/index.php/fm/article/view/4854/3847
doi: http://dx.doi.org/10.5210/fm.v19i3.4854.





A Great Cities Initiative of the University of Illinois at Chicago University Library.

© First Monday, 1995-2017. ISSN 1396-0466.