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December 14th, 2011 WW Staff | NikeLeaks Cables: Europe
 

Spain: SPECIAL 301:PUSH FOR ADDITIONAL PROGRESS ON INTELLECTUAL PROPERTY RIGHTS (IPR) ISSUES IN SPAIN

     
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Reference ID: 05MADRID1461
Created: 2005-04-14 16:15
Released: 2011-08-30 01:44
Classification: UNCLASSIFIED
Origin: Embassy Madrid

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 MADRID 001461
 
SIPDIS
 
DEPT FOR EB/IPC (JURBAN;SWILSON)
DEPT PASS USDOC (DCALVERT)
 
E.O. 12958: N/A
TAGS: ETRD KIPR SP
SUBJECT: SPECIAL 301:PUSH FOR ADDITIONAL PROGRESS ON
INTELLECTUAL PROPERTY RIGHTS (IPR) ISSUES IN SPAIN
 
REF: A. (A) STATE 54527 (B) APRIL 11 2005 CALVERT-WILSON
        E-MAIL
     B. (C) MADRID 00752 (D) MADRID 00724
 
1. Summary: The GOS has agreed to an IPR Roundtable with
the U.S.  On
April 8, the Council of Ministers approved and publicized
the
"Integrated Government Plan for the Reduction and
Elimination of
Activities Damaging Intellectual Property
(
http://www.mcu.es/gabipren/notas/2005/abril/c ul_08_piratas.p
df).  The
plan makes provision for media campaigns and the creation
of a working
group to discuss how to deal with internet piracy.  The GOS
willingness
to conduct an IPR Roundtable with the U.S., the
government's ambitious
anti-piracy plan, and the Supreme Court's recent
vindication of Nike's
trademark claims are favorable actions in the context of
the Special
301 review (Ref A). End Summary
 
 
IPR ROUNDTABLE
 
 
2. Following up on Commerce Assistant Secretary Lash's
offer during his February 17 trip to Madrid (Ref C), the
GOS has agreed to a one day U.S.-Spain IPR seminar.
This will take place in September per the Commerce
Department's concurrence (Ref B).  Trade Officer is
working with the Minister of Culture on finalizing a
September date.
 
 
ANTI-PIRACY PLAN - GENERAL ASPECTS
 
 
3. The anti-piracy plan contains five "blocks of
measures".  They include preventive actions; public
awareness measures; legal measures; educational
measures; and cooperation/collaboration measures.  There
are also four "urgent actions":
1) Ministry of Justice to ensure there are specialized
prosecutors to facilitate quick prosecutions and
establish uniform criteria for dealing with IPR crimes;
2) Ministry of Interior to establish a special police
group to ensure coordination between law enforcement
agencies;
3) Ministry of Industry, Tourism and Trade and Ministry
of Culture to create a working group with relevant
industry represenativess to "establish mechanisms to
detect and withdraw illicit content from the internet";
4) Signing an agreement between the Ministry of Culture
and Spanish Federation of Municipalities and Provinces
to create a "piracy map" in Spain with a view to
determining where to concentrate IPR-related law
enforcement efforts.
 
ANTI-PIRACY PLAN - ELEMENTS RELATED TO SPECIAL 301
DEMARCHE (REF A)
 
4. The anti-piracy plan makes provision for Ministry of
Culture, Ministry of Education, Ministry of Industry,
Tourism and Trade, Ministry of Labor, Ministry of Health
and Consumer Affairs media campaigns.  The campaigns are
supposed to be executed 12 months from when the the
"Intersectoral Commission" is created.  This Commission
will be composed of relevant government representatives
and IPR stakeholder representatives and will have a
permanent Secretariat.  The Commission will be charged
with monitoring and managing the implementation of the
plan.  The plan envisages three months from April 8,
2005 for approval of a Royal Decree establishing the
Commission.  The media compaigns should, therefore, be
executed during the July, 2005 - July, 2006 timeframe.
 
5. With respect to the issue of managing content on the
internet, the Ministries of Culture and Industry,
Tourism and Trade will invite content providers,
technology industry representatives, and internet
service providers to participate in a working group to
"detect and withdraw" non-authorized content from the
internet.  The plan envisages self-regulation in this
area.  There is no due date for the establishment of
this working group.
 
REACTIONS TO THE PLAN
 
6. An unscientific press survey indicates that reactions
to the plan vary from the positive to the skeptical.
Predictably, the pro-government daily El Pais came out
in favor.  Equally predictably, the opposition
conservative party culture spokesperson said it was "it
is better than nothing, but it is closer to nothing".
The General Society of Authors (SGAE) said this project
"puts Spain for the first time in the vanguard in Europe
in the struggle against one of the most prolonged
instances of aggression that the cultural and creative
industries have suffered".  The Actors and Performers
Association said the plan constitutes a "starting
point".  The  Anti-Piracy Federation (FAP) said the plan
"is ambitious and contains the necessary measures",
although perhaps the government should appoint somebody
to serve as a point of contact between government
agencies and private sector stakeholders.  The Business
Sofware Alliance (BSA) said the plan is very oriented to
creators of cultural products and that it should develop
a more software oriented posture because software
related piracy losses in Spain amounted to 421 million
Euros a year and the loss of 6,000 jobs.  The Spanish
Association for Intellectual Property Rights (Aedpi)
shares the BSA view and added that there must be
compensation for private copying in all formats,
including ADSL, not just CDs and DVDs.  The Music
Producers Association (Promusicae) said it was favorably
inclined towards the plan, but it wanted "more
operational measures".  The Technology Companies
Association (Aetic) said the plan establishes "the base
to define" the struggle against piracy.
 
NIKE CASE
 
7. On March 28, 2005, the Civil Chamber of the Spanish
Supreme Court ruled that Nike's former partner,
Cidesport, could not use a trademark similar to Nike's.
The court also dismissed Cidesport's invalidity actions
against Nike's trademark.  What this means in practical
terms is that Nike can now use its trademark name and
swoosh on apparel in Spain.  Nike's law firm in Spain,
Gomez-Acebo & Pombo, characterized this in an April 6
letter to trade officer as a "total victory" for Nike.
The firm also expressed gratitude for the U.S. Embassy's
work on behalf of Nike, especially former Ambassador
Argyros' and the Economic Section's efforts.
 
COMMENT
 
8. Skeptics have a point about the plan.  It is long on
description,
calls for more analysis, and lists actions generally
without deadlines
for accomplishment.  There are also no performance
measures.  Clearly,
the government does not want to take more punitive measures
against
consumers without having conducted public awareness
campaigns.
Moreover, given the different industry interests involved,
it would
prefer ISPs, technology companies and content providers to
find a way
to police the internet without having to make the necessary
tradeoffs
itself.  But the plan is also very clear that IPR piracy is
a bad thing
and that something needs to be done about it.  The GOS is
seized with
the issue because local artists have done a good advocacy
job with the
GOS.  Vice President (Deputy Prime Minister) Teresa
Fernanda de la Vega
told Charge when he met with her that she had the day
before met with
music industry representatives, and that she was conscious
of the
magnitude of the problem (Ref D).  Protecting artists - a
goal
repeatedly expressed in the plan - is an argument that
resonates in
Spain.  Also, this government may be especially sensitive
to artists'
concerns given that many prominent artists have Socialist
sympathies.
American interest in the issue has also had an impact.
Assistant
Secretary Lash's visit highlighted the importance we attach
 
SIPDIS
to the
issue.  Our representations to the government have
influenced the anti-
piracy plan.  For instance, beyond the media campaigns and
working
group we stressed per the Ref A Special 301 demarche, the
government
acknowledges that it needs to clean up the restaurant and
bar sector
with respect to IPR violations - that is probably a first
this has
happened in Spain. Given the IPR stakeholders' generally
cautious to
positive embrace of the plan, Embassy believes this year
old government
should have the opportunity to work the piracy issue
without Spain
being on the watchlist.  Moreover, it would not be timely
to put Spain
on the list when the judiciary has finally resolved Nike's
trademark
dispute, a 14 year thorn in U.S.-Spanish economic
relations.  The
upcoming September U.S.-Spain IPR roundtable will be a good
opportunity
to work with the GOS with the anti-piracy plan as the basis
upon which
we can evaluate Spanish IPR performance.
 
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