'An Act Sinde' leaves the door open at the end of blogs linking to P2P sites
Confusion contradictions, uncertainty. Some of the first reactions of lawyers to the Draft Law on Sustainable Economy that the Government has officially released Monday. The document, a priori, despite the initial explanations of the Minister González Sinde, introduces concepts such as "indirect profit" or "claim of harm" that could lead to judicial decisions with a subjective component in the background. According to the lawyer Javier Maestre, an expert on Intellectual Property and New Technologies, the text, in short, is a "mixed bag."
01/11/2010 - Mirentxu MARIÑO - 20 Minutes .- The Commission on Intellectual Property Culture created to "safeguard intellectual property in the Information Society" will act, as has been written, "to interrupt the supply of a service company to remove any information or contents that violate intellectual property by a for-profit provider, directly or indirectly, or who intended to cause financial damage. " The direct profit involve a fee, for example, by a discharge, the indirect, could result from banner ads containing a download page or a blog that links to that page.
latter concept, as Master, is a "vague legal concept" that is not specified and could cause "legal uncertainty" until now, all statements related to P2P spoke simply for profit, with the tagline of "indirect" the Government wants to cover the fronts so far remained empty. The other contentious term is the "claim" that, in the words of Jorge Llevat, the firm Cuatrecasas, involves "intent" or intention of causing harm to others, something difficult to value and, according to Master, is a "fact finding very complex. " An example of this would be an opinion against an entity management rights (eg, SGAE) written in a blog you can include a link to a download page.
Until action is taken against websites happen some time
Two Laws, a Royal Decree and Law will be modified to carry out the approval of the Draft, only in the intellectual property concerned. That is, until they start to take action against websites that allegedly infringe rights in this regard, as the Government contends, will be quite some time. The fundamental problem posed by the text, according to lawyer Carlos Sanchez Almeida, is "a bankruptcy jurisdictions in the system "by moving the scope for judicial proceedings, civil affairs, until now the responsibility of the judges of the commercial. The executive acts and" back door "in his words.
This transfer of competence should be assumed, as said in a press conference Justice Minister Francisco Caamaño, an amendment of the Organic Law of the Judiciary, but the official document of the draft, which according to counsel, "to the extent where you can affect the freedom of expression, should also be processed as organic law "- no mention at this point. To this end, the Government has made public the Draft Law Further Sustainable Economy Act, which adds to the rule a new paragraph 5 of Article 90.
And, to begin with, the text must first go through several advisory bodies, among which are the State Council and the General Council of the Judiciary. He and other important legal weight, predicts the lawyer, will not a few objections to the Draft, who then has to pass the ordeal of Congress and the Senate to amend basic laws necessary absolute majority in Congress, regardless of whether the Senate can, given the majority insufficient socialist veto another of the modifications.
The draft law is a fudge because it promotes urgent precautionary measures
On the other hand, Article 122 of the Law Governing Contentious Administrative Jurisdiction in which the Government supports this bill to expedite a court decision introduces °- to do a 122-bis, "was intended for demonstrations banned, such as those of nationalist groups. Therefore, according to Sánchez Almeida, is to "bring the same level" guaranteeing the right of assembly and intellectual property rights.
This, in his words, is a "legal fudge, because if the aim is to enact measures urgent precautionary not to do anything about it. "When a reporter infiltrated the Miss Spain in 2002, Telecinco recorded images and wanted to issue them, a judge within 24 hours of precautionary measures," he recalls, adding that if you want a faster justice could "dissolve ministries Culture, Housing and Equality to spend all of Justice officials. "
"In theory, against the pages of links"
"It's an outrage," he adds, "is equivalent to Fraga's Press Law, in which reporters were given the possibility of resorting to the contentious and administrative when closing a newspaper, " giving the reason the courts until three years after the implementation of the measure. This could happen again if one affected by the closure of its website decides to go to because, as Master, it is unclear what route should go, if the commercial or administrative litigation. According to Sánchez Almeida should be modified directly, Intellectual Property Law and Justice provide other mechanisms. In addition, reaffirming, "a four-day procedure gives no guarantees."
In any case, the question is in the air right now is, can the above Committee on Intellectual Property, the second section, which is created in Culture close a website or have to wait for a judge to decide? The answer is ambiguous: this body is to decide whether there is a violation or not, but is "forced" to go to the magistrate, in this case the Chamber for Contentious Administrative Court, "if you believe" that the resolution it has taken to close a website can affect the rights and freedoms guaranteed in Article 20 of the Constitution (opinion, information, etc).
And if not you think? "If I were part of the Commission and were to close a website would come to judge, because I may be prosecuted for trespass if my decision to infringe those rights and fundamental freedoms," said Sánchez Almeida. Anyway, he concludes, these measures "in theory go against the pages of links" and in the first place, as they are currently regulated such links do not constitute "a reproduction of content or public communication" and in Second, in these pages there are communities of users who are forums of opinion that might be affected and "censored."
not the end of Webs
latter concept, as Master, is a "vague legal concept" that is not specified and could cause "legal uncertainty" until now, all statements related to P2P spoke simply for profit, with the tagline of "indirect" the Government wants to cover the fronts so far remained empty. The other contentious term is the "claim" that, in the words of Jorge Llevat, the firm Cuatrecasas, involves "intent" or intention of causing harm to others, something difficult to value and, according to Master, is a "fact finding very complex. " An example of this would be an opinion against an entity management rights (eg, SGAE) written in a blog you can include a link to a download page.
Until action is taken against websites happen some time
Two Laws, a Royal Decree and Law will be modified to carry out the approval of the Draft, only in the intellectual property concerned. That is, until they start to take action against websites that allegedly infringe rights in this regard, as the Government contends, will be quite some time. The fundamental problem posed by the text, according to lawyer Carlos Sanchez Almeida, is "a bankruptcy jurisdictions in the system "by moving the scope for judicial proceedings, civil affairs, until now the responsibility of the judges of the commercial. The executive acts and" back door "in his words.
This transfer of competence should be assumed, as said in a press conference Justice Minister Francisco Caamaño, an amendment of the Organic Law of the Judiciary, but the official document of the draft, which according to counsel, "to the extent where you can affect the freedom of expression, should also be processed as organic law "- no mention at this point. To this end, the Government has made public the Draft Law Further Sustainable Economy Act, which adds to the rule a new paragraph 5 of Article 90.
And, to begin with, the text must first go through several advisory bodies, among which are the State Council and the General Council of the Judiciary. He and other important legal weight, predicts the lawyer, will not a few objections to the Draft, who then has to pass the ordeal of Congress and the Senate to amend basic laws necessary absolute majority in Congress, regardless of whether the Senate can, given the majority insufficient socialist veto another of the modifications.
The draft law is a fudge because it promotes urgent precautionary measures
On the other hand, Article 122 of the Law Governing Contentious Administrative Jurisdiction in which the Government supports this bill to expedite a court decision introduces °- to do a 122-bis, "was intended for demonstrations banned, such as those of nationalist groups. Therefore, according to Sánchez Almeida, is to "bring the same level" guaranteeing the right of assembly and intellectual property rights.
This, in his words, is a "legal fudge, because if the aim is to enact measures urgent precautionary not to do anything about it. "When a reporter infiltrated the Miss Spain in 2002, Telecinco recorded images and wanted to issue them, a judge within 24 hours of precautionary measures," he recalls, adding that if you want a faster justice could "dissolve ministries Culture, Housing and Equality to spend all of Justice officials. "
"In theory, against the pages of links"
"It's an outrage," he adds, "is equivalent to Fraga's Press Law, in which reporters were given the possibility of resorting to the contentious and administrative when closing a newspaper, " giving the reason the courts until three years after the implementation of the measure. This could happen again if one affected by the closure of its website decides to go to because, as Master, it is unclear what route should go, if the commercial or administrative litigation. According to Sánchez Almeida should be modified directly, Intellectual Property Law and Justice provide other mechanisms. In addition, reaffirming, "a four-day procedure gives no guarantees."
In any case, the question is in the air right now is, can the above Committee on Intellectual Property, the second section, which is created in Culture close a website or have to wait for a judge to decide? The answer is ambiguous: this body is to decide whether there is a violation or not, but is "forced" to go to the magistrate, in this case the Chamber for Contentious Administrative Court, "if you believe" that the resolution it has taken to close a website can affect the rights and freedoms guaranteed in Article 20 of the Constitution (opinion, information, etc).
And if not you think? "If I were part of the Commission and were to close a website would come to judge, because I may be prosecuted for trespass if my decision to infringe those rights and fundamental freedoms," said Sánchez Almeida. Anyway, he concludes, these measures "in theory go against the pages of links" and in the first place, as they are currently regulated such links do not constitute "a reproduction of content or public communication" and in Second, in these pages there are communities of users who are forums of opinion that might be affected and "censored."
not the end of Webs
0 comments:
Post a Comment