Cablegate: Special 301 Mid-Term Review with Copyright
This record is a partial extract of the original cable. The full text of the original cable is not available.
UNCLAS SECTION 01 OF 02 MADRID 004299
DEPT FOR EB/IPC WILSON, DEPT PLEASE PASS TO USTR BPECK, DOC
JBOGER, USPTO JURBAN/MSMITH, DOJ KDORSHOW, DHS RBAE
E.O. 12958: N/A
TAGS: ETRD KIPR SP
SUBJECT: SPECIAL 301 MID-TERM REVIEW WITH COPYRIGHT
REF: MADRID 00736
1. This is an action cable. See para. 6.1.
2. Summary: Spanish copyright industry representatives said
at a 10/29/04 DCM-hosted lunch that it was too soon to tell
where the Zapatero government was going with respect to IP
protection. The majority said they had no view at this time
whether Spain should be put on the Special 301 list next
year. The Business Software Alliance (BSA) representative
said, however, that the U.S. should strongly consider putting
Spain on the list because IP internet protection was very
weak, i.e. internet providers (principally Telefonica) were
not being made sufficiently responsible for protecting
content from unauthorized downloading. The participants
agreed Spanish Customs should crack down on imports of blank
CDs; that the GOS needed to make a combined public effort
with internet providers and content companies to deal with
internet piracy along the lines of a recent French government
initiative; and, that Spain needed to pass implementing
legislation for the internet treaties soon. End Summary
3. The DCM-hosted lunch included Asociacion Fonografica y
Videografica President Antonio Guisasolo, Pedro Farre Lopez
(SGAE), Federacion para la Proteccion de la Propriedad
Intelectual de la Obra Audiovisual (FAP) Legal Coordinator
Salvador Esteban, Business Software Alliance Director of
Institutional Relations Carlos Manuel Fernandez, and FEDICINE
Secretary General Estela Artacho. EconCouns, Trade Policy
Officer, and Econ FSN also participated.
4. Participants agreed that Spanish police continued to
conduct an impressive number of raids against IPR pirates,
and that local police forces especially in Madrid, Catalonia,
and the Basque region were becoming particularly active in
this regard. The new penal code establishing stiffer
penalties entered into force on October 1, 2004 so industry
needed to wait to see what effect the new code would have.
All five IP representatives complained about the lack of IPR
knowledge among judges and a sense among many members of the
judiciary that IPR offenses were trivial. They said they did
not see a big shift in policy with the Zapatero government.
However, the SGAE representative said that he thought the new
government would probably be reluctant to engage forcefully
in this area because the "social cost" would be too high,
meaning the political cost incurred by cracking down further
on the largely immigrant "manteros" (street pirates), and the
growing generation of younger people who believed downloading
movies and music and the internet for free was appropriate.
5. Although street piracy remains a problem, internet piracy
is fast becoming a more significant issue. Although Spain
has signed the WIPO internet treaties, it has not passed
implementing legislation because the EU Copyright Directive
(this Directive provides the legal framework for implementing
the WIPO internet treaties) has not been implemented yet.
According to a Ministry of Culture contact, the Ministry is
poised to send to parliament implementing legislation, but he
would not say when this would happen. The BSA representative
complained that the "killer applications" sold by Telefonica
(by far and away the most important internet provider in
Spain) allowed subscribers to download movies and music from
the internet with ease. He claimed that although Telefonica
recently, for instance, started offering Apple's iTunes music
for fee service, it remained unreceptive to discussions on
how to prevent unauthorized downloading from the internet.
Separately, a Spanish lawyer told EconOff that the
fundamental problem was that without appropriate implementing
legislation, peer to peer operation cannot be effectively
WHAT CAN BE DONE?
6. There was consensus on the desirability of working on the
1) Get Spanish Customs to track and in certain cases prevent
the unauthorized importation of blank CDs. Embassy in
coordination with industry will encourage the GOS to do so.
Embassy requests information from Customs and Border
Protection (CPB) regarding whether it has experiences that
might be worth sharing in this regard with Spanish Customs.
Such information sharing/training could conceivably be done
in partnership under the auspices of the USG's recently
announced Strategy Targeting Organized Piracy.
2. Encourage GOS Ministries of Finance, Commerce, Justice,
and Interior to announce together with internet service
providers and content providers a commitment and strategy to
prevent unauthorized downloading from the internet. The
copyright industry representatives agreed that the French
initiative in this regard announced last July was a "model".
3. Stress the importance to the GOS of passing implementing
legislation for the internet treaties.
4. Do more to train and sensitize Spanish judges to the
importance of IPR. Embassy will explore what can be done
additionally in terms of speakers and IVs. In July this
year, through the Joint Vistor Program (JVP): "U.S.-Spanish
Judicial Cooperation", the Embassy nominated and sent two
Barcelona-based judges to the U.S. for exposure to the
American IPR system. Our understanding is that the judges
had a succesful trip to the U.S. Unlike in some other
countries, many Spanish judges are receptive to participating
in U.S. exchange programs so we will work to identify other
judges we might potentially nominate for similar trips.
5. Encourage the GOS to launch a public campaign on the
importance of respecting intellectual property. All
copyright industry representatives said this was important
because such campaigns have until now largely been conducted