Part 3: Spain – a case example

There was a short presentation describing the context and nature of the Spanish law.

The context behind the Spanish law

The background to the Spanish law – an amendment of article 32 of the Spanish Copyright Act – can be found in similar copyright-related interventions in Europe and the wider world, designed to benefit the news industry. The Copiepresse litigation in Belgium provides one example, where Google were sued by a Belgian collecting society. They won in the courts, but decided in 2012 not to enforce their judgment. Another can be found in Brazil, where in 2011 the news publishers decided to withdraw their material from Google News. This resulted in Google removing relevant metadata, and publishers’ traffic was reduced by 5%. A third example is that of France, where the government threatened to bring in a new law, but did not after negotiation resulted in Google providing publishers – through the auspices of a particular project – with various benefits.

The Spanish law was said to be the creation of a consortium of Spanish newspaper editors, Gedeprensa. This was a collective created in 2002 by the five most influential newspaper groups. Gedeprensa was created against a background of conflict with the Spanish competition authorities, and uncertainness about the legality of quotation of press articles.

Spain, being a civil law system, considers a newspaper as a promoter of a collective work. Copyright in articles and photos, and the like, is therefore held by individual authors, and is not held by news publishers. However, it may be that there is a move in some civil law jurisdictions to see authors of collective works – like newspaper publishers – as quasi-authors.

Reforming art 32 of the Spanish Copyright Act

In 2004, article 32 of the Spanish Copyright law was reformed to mandate compensation to publishers from press clipping activities, and also ancillary compensation to individual authors. The second reform of the law, in 2014, was targeted not at press clipping companies, but at Google. The reform means that it is permissible to quote ‘non-significant fragments of content available to the public’, where the source of the content is ‘periodicals or regularly updated websites’, and where the material in question ‘has the purpose of informing, creating public opinion or entertainment’. But, while this permission will not need authorisation, it will entail the paying of compensation to editors and other rights holders. Furthermore, it is un-waivable.

The provision has been called the “Google Tax”. It is aimed at deriving revenue from Google. It has been somewhat divisive. AEDA is an association of newspapers in Spain, but not the only one. An association of smaller newspaper publishers and editors have challenged it.

It’s also plausible that the passing of the law was facilitated by the fact that the incumbent government – a populist right wing administration – needed the support of those big newspaper organisations who were lobbying for it.

Consequences of the Spanish law

What were the results of the law? In December 2014 Google pulled Google News out of Spain. Traffic has decreased to many newspaper sites – the smallest newspapers said their traffic has fallen by 10% to 15%. A big newspaper group indicated that they would not participate, even though the right is said to be unwaivable. When Google News disappeared, other aggregators were made to pay – but it is unclear who is subject to the law. Indeed, some newspaper publishers will have to both pay and be paid under the law. Smaller aggregators have also been caught by the law.

There are some legal problems with the law: first, the fact that it is unwaivable is curious, as this feature is normally reserved in Spanish law for moral, personal rights, not the economic right of a news publishing company. Second, there are difficulties in drafting, interpretation and application of the law, not least because ‘aggregation’ is not defined. The difficulties of applying the law are exacerbated, as the law was aimed at Google News, yet this is no longer in existence: it is unclear who should now be paying. Third, Spanish copyright law is focused on the rights of authors, yet these are not mentioned in art 32. Fourth, it should be asked whether it is appropriate to protect something as transient – and of such transient value as - news for the full duration of copyright. Fifth, it is not clear how derivative works utilising news should be treated. These have been recognised in Spain since 1847, and comprise – for example – the right of journalist authors to collect their material and publish it as a book. Sixth, the position of third parties is not clear.

Many are ranged against the law, including small publishers, the Competition Court, and opposition parties.

Google withdrew Google News from Spain, and indicated it would invest €150m in the Digital News Initiative. Nevertheless, the collecting society tasked with implementing the law is working.

Discussion

It was observed that many publishers in Spain were in favour of the Spanish law, as well as against it. And that given the difficulties in news publishing, it was necessary to think of a positive alternative. Some thought the term ‘Google Tax’ to be unhelpful.

The emphasis in Spain on the interests of authors was said to be misleading, if it failed to recognise that successful news publishers are of central importance to authors’ employment. There is a mutual benefit here between authors and news publishing entrepreneurs, it was argued.

It was also said that news publishers do act as quasi-authors in preparing and organising an appropriate range of content within a newspaper, or the like. Moreover, industrial scale investment is required in journalism to – for example – investigate regularly and efficiently.

However, some felt it to be overly optimistic to expect the old model of news publishing to continue and that change is inevitable. It may be, they argued, that copyright changes could protect employment for journalists as authors, but this is insufficient grounds to support an extension of copyright or related law.