LES: a false discussion

Enrique Dans. Professor. IE Business School

13 December 2010

The debate of Spain’s sustainable economy law has promised to be an empty one from the moment it included the awful anti-downloading law that Sinde managed to slip into the proceedings.

After numerous deferrals, the parliamentary procedure for passing the bill on the sustainable economy is about to begin. In the preliminary stages, the discussion has been completely polarised by an issue that would, if nature had her way, have absolutely nothing to do with the bill: the surreptitious inclusion of a final provision aimed at equipping a number of intellectual property entrepreneurs and customs officers with tools for browsing the web and closing down websites left, right and centre, regardless of what judges may think or rule.

A final provision which simply has nothing to do with the context of the bill itself, nothing to do with the idea and concept of a sustainable economy and which was introduced in response to pressure from a dying industrial sector on a minister who comes from said sector and has important interests in it. The inclusion of final provision two in the bill for the sustainable economy was celebrated by copyright management entities that raised their glasses in an expensive restaurant as if they had scored a goal against the legislative process. According to the dictionary, it has only one name: corruption.

Following the citizen outcry at the end of last year, the government introduced supposedly corrective measures that sought to simulate the presence of a judge as a guarantee of the proposed process. In fact, the process removes the true nature of a judge´s decision and places it in the hands of an administrative body, using the judge as a cover-up and clearly violating a fundamental right. The procedure opts for a cumbersome legislative change that affects no fewer than two laws, one royal decree and one organic law to create a kind of "legal Frankenstein" in which the judge neither acts nor examines: a final provision that is completely out of place, stuck in a law that has nothing to do with the subject and that leads us to a false discussion on an inexistent problem.

If we get to the point of the matter: what really brings us to this zenith of absurdity? The fact that, judicial ruling after judicial ruling, the judges of this country have systematically considered that reports filed against websites must be rejected owing to the fact that no crime has been committed in the facts submitted for hearing. We repeat: so far and in accordance with current legislation, Spanish judges have unanimously and generally preferred to consider that the action of every website reported in criminal and civil proceedings did not constitute a crime. Please note: we are not speaking about "legal irregularities" or decisions taken by laypersons in the matter; we are speaking about well-trained judges who were fully aware of their acts and who, knowing that their decision would have a significant impact in the media, chose, after a conscientious analysis of the case, to rule that the activity in question did not constitute whatsoever crime.

It is particularly interesting to note the obsession for the quick and speedy closure of websites when there is a procedure (the application for precautionary measures) that works quickly and without hindrance. What is the aim of introducing supposedly "speeding-up" measures for something that doesn´t need to be "speeded up"?

What is the intention of the minister who was one day given the ministry as a birthday present and the dying industry she belongs to and represents? Quite simple: as the judges have repeatedly refused to confirm that her interests are in the right, she wants to move them aside and create a special kind of justice tailor-made to suit her requirements. Something that is incompatible with the concept of democracy.

The parliamentary procedure that is about to begin is neither good nor bad: it is simply false. Any discussion that includes the final provision in question is not fitting; it is out of place and riddled with corruption. The inclusion of the final provision must be amended. Perhaps, instead of trying to create "tailor-made justices" and "permissions that are not to be messed with" or pretending that the sustainable economy consists in some way of closing down websites, we should reconsider just how sustainable the obsolete concept of intellectual property is in the digital era.

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