Spain's Ill-Conceived 'Google Tax' Law Likely To Cause Immense Damage To Digital Commons And Open Access

from the digital-cluelessness dept

Tue, Aug 12th 2014 11:03am — Glyn Moody

Techdirt recently wrote about Spain's imminent and almost unbelievably foolish new copyright law designed to prop up old and failing business models in the publishing sector. Mike mentioned that it was potentially disastrous for things like fair use, Creative Commons and public domain material -- so broad is the reach of this new law's "inalienable right" for publishers to be paid when snippets of works appear elsewhere. Now Paul Keller has put together a great post on Communia's blog exploring the details of this particular threat: The law creates a right for 'electronic content aggregation providers' to use 'non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated' without the permission of the rights holder. However such uses require payment of a 'fair remuneration' to the rights holder (via a collecting society). This is a right that content providers already have and can choose to license or waive assuming the non-significant fragments are copyrightable and absent an applicable exception or limitation. What this new legislation does is eliminate the ability of providers to choose how to exercise this right, and impose a mandatory royalty on reusers even for content that has been made available under a public license such as Creative Commons or that is otherwise available under an exception to copyright or in the public domain.
It's that last fact -- that the mandatory royalty can't be turned off, even for works released under Creative Commons licenses that are explicitly designed to encourage payment-free sharing -- which is so disturbing. It threatens to undermine not only Creative Commons licenses by negating one of their key features, but also the central feature of a digital commons -- that anyone can draw upon it freely in order to create new works that are then returned to an enriched commons for the benefit of all.

I can't believe even the Spanish legislators who put together this misguided law really intended this attack on the Creative Commons world, but that simply suggests they are largely clueless about how the digital world and its commons operate. That's confirmed by another post on this topic, this time from Renata Avila, writing for Global Voices. She explores the likely impact of this new law on another uniquely-digital phenomenon -- open access publishing: The current reform of Spain's copyright law incorporates a new levy on universities that is related to open access to publications. Under the policy, universities that want to share research or other content for free will be prohibited from doing so beyond the confines of their institution and personnel. In other words, if you are an author from a university and you want to share beyond the academic world and someone links to your journal article, that person must pay even if you do not even want the payment. A percentage of these fees will be collected by the Spanish agency CEDRO (Centro Español de Derechos Reprográficos) and the virtual campuses of universities will be required to comply.
The new law's provisions thus negate the whole point of open access, which is to facilitate the free sharing of academic materials on a global scale so as to accelerate research and its benefits.

That's naturally a tragedy for the researchers who want to share their work so that others can build on it, but it's also a tragedy for Spanish society. If this law is passed, it means two of greatest benefits arising from the widespread use of the Internet -- the creation of a digital commons that can be shared by all, and the wider dissemination of knowledge thanks to open access -- will be seriously harmed. As a consequence, gifted entrepreneurs and academics in Spain are likely to move to other countries with a greater understanding of these matters, helping to drive innovation and intellectual discovery there instead, while Spain may well find itself turning into a digital backwater.

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Filed Under: copyright, digital commons, google news, google tax, inalienable right, open access, snippets, spain
Companies: google

21 Comments

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Michael, 12 Aug 2014 @ 11:09am

Don't attack a windmill unless you know what to do when it falls your way.
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- David, 12 Aug 2014 @ 12:03pm
  
  Re:
  Embrace the windfall.
  
  That would appear to be the idea.
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Anonymous Coward, 12 Aug 2014 @ 11:25am

Assuming the law covers user-submitted content as well as that which is posted (manually or automatically) by a website's operators, this will hurt not only Google and academia, but also Spanish citizens themselves who will no longer be able to comment on news by citing relevant portions of an article.

If the Spanish people have any sense at all, they will soon rid themselves of the idiots who voted for this bullshit.
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- Sierra Padre, 13 Aug 2014 @ 9:46am
  
  Re: sense (non variety)
  Sense? We don't need no stinking sense!
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ChurchHatesTucker (profile), 12 Aug 2014 @ 11:38am

Don't cave again, Google
The best thing for everyone (outside of Spain, temporarily) is to let this play out.
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Gracey (profile), 12 Aug 2014 @ 11:54am

Sooooo, when does Spain disappear from the internet?
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- Almost Anonymous, 12 Aug 2014 @ 12:03pm
  
  Re:
  Yes, exactly. Let Google and two or three other "aggregators" make the decision to turn off their Spain operations, observe the howls of anguish and protest from Spain's citizens, then watch Spain's legislators race back to the table and strike this foolish law.
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  - techflaws (profile), 12 Aug 2014 @ 10:26pm
    
    Re: Re:
    Unfortunately, as we've seen in the fight over the German Leistungsschutzrecht, Google - despite all its money - just hasn't the balls to take the necessary radical steps.
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Anonymous Coward, 12 Aug 2014 @ 12:04pm

it seems reasonable to assume that the entertainment and publishing industries have been prominent in getting this bill to the point of becoming law. this is the problem when any and all amounts and lobbying can be used to force something through. the politicians involved aren't interested because they have received their envelopes and will get favoritism anyway.
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Anonymous Coward, 12 Aug 2014 @ 12:15pm

As I've said before, copyright isn't a spectrum ranging from abolition at one end through minimalism and on to maximalism at the other end, it's more like a moebius strip where copyright maximalism actually results in creators having less rights. Under this law, the right of creators to charge what they want is being abridged. It's ironic and hypocritical in the extreme and it's probably the result of these people not so much believing in the rights of creators to control copies of their work as believing in the maximization of profit.
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John Cressman, 12 Aug 2014 @ 12:38pm

Fools...
Yah... the Spanish politicians are about as clueless as they come... possibly only exceeded by the French.

But hey... you elect fools, you get foolish laws.

Now the Russians, at least you know where they are coming from. They want COMPLETE CONTROL of EVERYTHING.
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Anonymous Coward, 12 Aug 2014 @ 1:27pm

This just seems like a freakishly weird thing to legislate.
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Zootcast, 12 Aug 2014 @ 2:20pm

Tax madness
Oh my gosh, this goes far beyond the recent law approved in Italy, virtually dictated to the government by the SIAE (the equivalent of the CEDRO Spanish agency), which estabilishes a tax even heavier than the current as a "fair compensation" due for private copying. A deal worth 150 million euros per year. I'm only glad that our "politicians" did not think first of this madness...
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Anonymous Coward, 12 Aug 2014 @ 5:39pm

"...(via a collecting society)..." meaning the greedy bloody middle men who will no doubt take their cut, most likely a major portion of that payment before passing on whatever is left to the holder. Greed by any other name.

In this case the Spanish lawmakers are idiots for this piece of crap.
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- Anonymous Coward, 13 Aug 2014 @ 12:00am
  
  Re:
  As far as U can tell, the collecting agencies take their cut and pass the remainder onto the labels who take their cut and the charge the artists for the administrative overheads, which are always more then the amount they receive
  /Hollywood and label accounting 101.
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Seegras (profile), 12 Aug 2014 @ 11:30pm

A Ban on Scientific discourse
This is nothing less than a ban on scientific discourse, and also, a ban on participation in open source projects.

Plus of course, it's a license to kill the public domain. Everyone can just republish something either under the public domain or under a free license and gets a new right on it.
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Anonymous Coward, 13 Aug 2014 @ 4:47am

Conflicting rights
I often see this paradox when others claim something is a moral right. For example, artist resale royalties are often legislated as "inalienable" rights, to "protect" the artist from the temptation of selling his future interest in resale royalties while he is poor and "vulnerable". Making that right "inalienable" however, means that the artist cannot exercise his right to donate his works "without strings attached". So what does this mean? Obviously, both rights cannot simultaneously be moral rights, because they are mutually exclusive.

One person's "moral" rights are another's arbitrary rights.
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- john walker, 13 Aug 2014 @ 4:17pm
  
  Re: Conflicting rights
  The resale royalty proposed for the US, would be transferable (but not extinguishable) . It is a certainty that many artists will agree to transfer the 'right' to the purchaser of the artwork, in return for a better first sale price and therefore when or if that art work is eventually resold, the person paying the royalty, would be the, 'rightholder'!
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  - John Fenderson (profile), 14 Aug 2014 @ 8:55am
    
    Re: Re: Conflicting rights
    None of which makes the idea any better.
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    - john walker, 15 Aug 2014 @ 6:43pm
      
      Re: Re: Re: Conflicting rights
      totally agree
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ahow628 (profile), 13 Aug 2014 @ 6:35am

Not too worried
I wouldn't worry too much about this. Spain has some pretty onerous laws but their enforcement is minimal to non-existent. This one is going to fall by the wayside very quickly.
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