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Eduardo Valpuesta Gastaminza, Full Professor de Commercial Law, University of Navarra
Downloading music from network: a misguided proposal
How to regulate the "downloading" of music and movies from network is a controversial issue, nowadays, due to the treatment proposed by the Draft Bill of the Sustainable Economics Law. There are two opposing blocks of opinion on this issue. On the one hand, a good part of intellectual property owners and official bodies advocate the strict application of the Law. From agreement with this, there is no doubt that, in general, "downloading" music or movies from the Internet is illegal, in the same way as sending music or video files by e-mail, or proposing exchanges of this subject of works on the platforms of exchange. Of course it is lawful if the music or work is freely accessible, because that is how its owner has configured it, or if the page that offers it has paid the corresponding rights to the authors to market the work in this way. But in all other cases (which are quantitatively the most numerous), the copy is unlawful, even if it is made for domestic use.
On the other hand, the defenders of free knowledge and free access to cultural works have drafted, among other documents, the "Manifesto in defense of fundamental rights on the Internet", in which they consider that intellectual property cannot be placed above fundamental rights such as privacy or freedom of expression, and advocate that authors seek modern, effective, credible and affordable alternatives that are adapted to new social uses.
It is not my intention to enter fully into this discussion. The defenders of this second position err in a certain naivety by demanding free access to cultural works ("free access" to culture is not equivalent to "free access"), or by ignoring the authors' property rights. But those who demand a strict application of the Law forget that in this subject a right based only on prohibition/sanction makes no sense, especially when the prohibition is very easily circumvented and it is uneconomical to prosecute it.
Regardless of the position that everyone adopts in this subject, what seems evident is that the proposal presented in the aforementioned Draft Bill is difficult to accept in several of its aspects. Referring to just one of them, for the prohibition to be operative it is necessary to be able to know the identity of the offenders and their movements on network (pages they visit, activities they carry out, exchanges they propose, etc.). These transaction data are known to the providers of access services to the network, but they cannot disclose them in a generalized manner, as they are protected by the rules and regulations on the protection of personal data , by the right to privacy and by the secrecy of communications. The draft bill "settles" this stumbling block by establishing that the competent bodies may require these providers to communicate the data that allow identification, and that the providers must provide them. This mandate is hardly acceptable, at least with this generality, as it means introducing by means of ordinary law a very vague exception to the rules and regulations on the protection of personal data and some added limits to the right to privacy and secrecy of communications. In fact, the Court of Justice of the European Communities has already warned that a regulation requiring such identification and communication of these data should respect fundamental rights and act in accordance with the principle of proportionality.
No less objectionable is the fact that in the Draft Bill and in some of its defenses, intellectual property is described as a "fundamental right" (in order to equate it in quality or importance to the right to privacy), or its defense is equated with that of such important values as public order, public safety or respect for the dignity of the person. Under current legislation it is clear that intellectual property is not a fundamental right; if it were, it should be developed in an organic law, and it is regulated in an ordinary law.
In this subject, therefore, if the political power wants to do something, it does not seem that the path proposed now is the most viable. This has already been stated by the committee Fiscal in a recent report . It would possibly be more realistic, less conflictive and much more useful to resort to a regulation that does not simply "prohibit" and "sanction" the offender, but seeks alternative paths that satisfy the interests of both parties. Because a prohibitive law that hundreds of thousands (perhaps millions) of people ignore is neither credible nor effective, and undermines the confidence that can be had in the legal system of a country.