Eduardo Valpuesta, Professor of Commercial Law, University of Navarra
Lack of guarantees
The project de Ley de Economics Sostenible includes a new regulation on the infringement of intellectual property rights through information society services (i.e. Internet). The main lines of this proposal are as follows. Firstly, the Intellectual Property Commission is created within the Ministry of Culture, which may adopt measures to interrupt the provision of an information society service or to remove content that infringes intellectual property.
Secondly, if an information society service infringes intellectual property rights, the Commission may take the necessary measures to interrupt its provision or to remove data that infringes them. That is, if, for example, a person from a web page offers or publishes protected music, or protected literary texts, without authorization for dissemination, the Commission can "close" that page that broadcasts protected contents without authorization.
Thirdly, the Intellectual Property Commission, in order to identify the person who is carrying out the allegedly infringing conduct, may request the Internet access service providers to identify him/her, so that he/she can appear at procedure (obviously, this person has contracted with an Internet access business to upload the page). The providers will be obliged to provide the data available to them. This is the most criticized part of the proposal Law, as it implies that an administrative body can investigate the identity of those who upload web pages, and also Internet service providers must disclose such data (which, in principle, could be protected by the right to privacy, or even by freedom of expression). The Law does not establish any guarantee on how to carry out such identification, nor is it clear that this intrusion into privacy is proportionate to the end sought, and allows the Commission to identify subjects without any prior judicial control subject that such persons do something allegedly unlawful. Finally, when the Commission considers that a service provider infringes intellectual property, it has to request authorization to close the page from the Central Administrative Courts of the National High Court. In this way there is a judicial intervention, but with a previous action management assistant that already considers the subject as infringing.