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

from the digital-cluelessness dept

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

Spain Likely To Pass 'Google Tax'; Makes Paying For News Snippets An 'Inalienable Right' And A New Bureaucracy To Collect It

from the yikes dept

We've covered a few attempts in Europe to create what appears to basically be a tax on Google News for newspapers. These newspapers, who have been struggling to adapt in the modern internet world would like to blame Google News for their own failures, despite the fact that Google sends them traffic. When a court case in Belgium was won by the newspapers, Google simply removed those newspapers from the local Google News... and those very same newspapers freaked out and demanded to be let back in. This, of course, demonstrates the vast hypocrisy by the newspapers here. They know they need to be in Google News because of all the traffic it drives, but they also demand to be paid for it. Google has made it quite easy for newspapers to opt-out of Google News if they really feel like their work is somehow harmed by having Google link to it -- but none of the newspapers use it, because they know how valuable the traffic is. In fact, many of the same newspapers who are complaining are, at the same time, using Google's own tools to improve how they appear in results.

Efforts like the ones in Belgium have happened in France and in Germany, where a new law was passed last year. That law had some loopholes, so now German newspapers are demanding a huge chunk of money from Google.

But the situation over in Spain just got even more ridiculous. Julio Alonso has the details, in which it appears that the lower house of the Spanish legislature has approved a very, very dangerous bill that creates a brand new inalienable right for news publishers to be paid for, via compulsory licenses, any "electronic news aggregation system," which is broadly defined as anyone who shares more than just anchor text with a link. A short summary? You'll have to pay up:

The Spanish law proposal declares that editors cannot refuse the use of “non-significant fragments of their articles” by third parties. However, it creates a levy on such use to compensate editors and declares it an inalienable right (derecho irrenunciable).

The introduction of the inalienable right was done to avoid what happened in Germany. If you are a digital editor that publishes with a copyleft license, like myself, and you minimally understand how the internet actually works, you cannot decide to not charge Google News. It is compulsory. More than a right it is an obligation. Therefore, Google cannot exclude sites requiring payment from Google News. It would still need to pay for those it includes, even if they do not want to be compensated.

Furthermore, such tax, is to be administered by a third party (entidad de gestión) in a similar way to what SGAE (the Spanish RIAA) does with music rights. In this case most likely CEDRO (the entity that collects fees for the use of written text, photocopies and so on). How much it is to be paid and how the proceedings would be split among editors has not being disclosed. Though there is reason to suspect of a distribution just to AEDE members.

To make things even worse, the tax is not even aimed only at Google. It is aimed generally at “electronic news aggregation systems”, and, therefore it includes basically anyone who links with anything more than an anchor text.

It seems worth noting here that collection societies around the globe have been plagued with corruption and other problems, often diverting money from smaller creators to the biggest. And, some of the worst stories come from Spain, where SGAE was accused of mass corruption, involving stealing $550 million from artists. That doesn't bode well for this new "organization."

As Alonso notes, this isn't just directed at Google News, but Menéame, a popular Digg/Reddit-like aggregator in Spain (randomly: we get a fair amount of traffic from that site). But it could also impact Twitter and Facebook where people share links with text. And also a variety of other aggregators like Flipboard, Zite and Pocket.

The fact that it's considered "inalienable" is especially troubling. It basically overrides any concept of fair use, Creative Commons or even public domain material. Furthermore, Alonso notes that a bunch of organizations, including a bunch of other newspapers, are fighting against this, but it didn't seem to matter. A report has warned that implementing this law could cost the Spanish internet industry over a billion euros, and sites like Menéame are already talking about leaving the country. There are rumors that Google might just shut down Google News in Spain over this. But, still, the legislation was pushed through under questionable circumstances:

The law was passed on Congress in a special session in the mid of summer, on the Culture Committee and not on the plenary session, with almost no debate in a very awkward session, with many Congressmen declaring to the press, sometimes unintentionally, that they knew very little about what they were voting.

Despite widespread public and industry (outside the largest Spanish newspapers) opposition to this, Alonso suggests that the bill is still likely to become law. And we'll have yet another disastrous policy for the internet, designed to protect the industry of a few legacy players who failed to adapt.

Filed Under: aggregation, collection society, google news, inalienable right, quoting, snippets, spain, tax
Companies: google, meneame