Chairs: Raquel Xalabarder. Professor, School of Law and Political Science (UOC).
Ramon Casas Vallès. Professor of Intellectual Property at University of Barcelona.
Ten years of intellectual property on the Internet law reforms
The ancient Spanish Law of Intellectual Property (1979) was technologically neutral and thus could be applied in reality despite the many evolutions of technology.
But the new Law of 1987 had to face many issues: new technologies, European law, and the particularities of Spain.
The frontiers between what is public and private and between what is usage and what is delivering have blurred. What is now usage? What is now exploitation? Now, using can mean exploitation of affect those who are trying to benefit from exploitation.
On the other hand, the concept of reproduction has also changed. We now reproduce everytime we browse the Internet. Which does not mean it goes against intellectual property rights. But is there exploitation every time we distribute and/or communicate? Google Books is a good example of distribution without the aim of exploiting, as it is the information about the book what is exploited, despite the fact that the whole content is communicated.
The concept of distribution and public broadcasting are different in Europe and Spain.
There are several issues that relate to Spanish institutions and uses, such as piracy or “piracy”. The issue of piracy was addressed with the right to private copy and the right to compensation to the right holders.
As circumventing the former law became quite easy — both technically, both legally — the new (coming) law what directly does is trimming many user rights. On the other hand, the costs of exploitation or loss of benefits of exploitation of some intellectual property rights do not fall upon the users or potential users, but upon the costs of the whole citizenry, as they are supported by the State budgets.
In the new project of law, vicarious cooperation of induction to illegal use will also be punished, such as creating software to enable P2P file sharing.
Discussion
Francisco Jurado: how can we punish coding a technology that may enable illegal file sharing but also legal file sharing? Casas: there are two logics here. The technological one: if it can be done, so be it. And the legal one: if it can be done, let us think whether we want this to be. And the legal thinking on P2P file sharing should be whether we want that. And we want that depending on the majority use of such technology. If the 99% of uses is illegal, maybe we should ban a certain technology, despite its “it’s-possible-so-let’s-do-it” nature.
Q: intellectual property law is still focused on protection, and it seems that creation has been left aside. Is that it? Casas: intellectual property is not the origin, but the consequence of creation. And property is about the right to decide what the creator can do with her work. Do we need to foster creation because it is in the public benefit that there is more creation, etc, etc, etc? Right, but always respecting the particular decisions of the individual upon her creation.
Q: how long can we keep the regulation of copyright on a national basis, or we have to have an international (common) copyright law? Casas: It is impossible to protect intellectual property rights without international standards. It has always been so (the Bern agreement, the OMPI treatments, etc.) and we will see more of that.
Q: what happens with streaming? what happens with ebooks and used software? how can we compute the damage to right holders? Casas: it is very difficult to compute what is the damage to right holders. In the case of Spain, the calculations have been “how much am I (as the Government) willing to pay?”. Used software: does not apply in Spain. Streaming is public communication.
