Spain and the aggregators' levy: war on the commons or just a light skirmish?

It is with great pleasure that this weblog hosts the following piece by Fidel Porcuna (Bird & Bird, Madrid), inspired by a recent bit of thinking on Communia by Paul Keller.  Writes Fidel:

"If we should pick a single measure, among several which the Spanish government seeks to implement via the new reform of the current Spanish Intellectual Property Law (passed by the lower chamber of the parliament on 26 July 2014), which has received and continues to receive major criticism globally, that would be the measure dealing with the news aggregators' compulsory levy (also called "Article 32.2", "Google levy" or, more properly, the "AEDE levy"). By this levy, electronic content aggregation providers using "non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated" will trigger a right to an equitable remuneration. This remuneration is to be compulsory managed by a collecting society in favour of publishers and other relevant right-holders (the association of journalists is also claiming an entitlement). Contrary to the current legislation where this remuneration exists, this new law makes the remuneration unwaivable, literally "unrenounceable". This inclusion has opened a Pandora's box in which the tensions between aggregators and publishers have so far been locked. While publishers are interested in obtaining economic gains from the reuse of copyrightable fragments, aggregators maintain that this reuse brings large benefits to publishers in terms of redirecting links, and a fair use exception is applicable based on general interests of free creation.

Is this now unwaivable character risking the commons? In his thoughtful and well-documented article, "Did Spain just declare war on the commons?", Paul Keller explains the damage linked to the inability of providers to choose how to exercise this right, let alone the ambiguity of the wording of the new law (e.g. is it really meant to be so broad to include every website which is regularly updated and contains information or opinions, such as a blog; what length is required to be included in the definition of non-significant fragments?) First, Keller argues that the reform will limit creators and publications who want to encourage others to reuse their content because they will not be able to waive the requirement that users must pay for aggregating their content. Secondly, non-traditional publishers may do not want to be remunerated for re-use of non-significant fragments taken from their websites since their business models are based on traffic or because they are interested in sharing their writings as widely as possible. Thirdly, Keller argues that it will render ineffective the Creative Commons licences or other works benefiting from the free culture. He concludes that the reform is another ill-conceived attempt to support the failing business models of traditional publishers by misusing intellectual property law. The view coincides with recent Ricardo Galli's interesting article published in El Mundo, where the conclusions from the Competition Commission's report on the subject are cited. Ricardo Galli is founder of Menéame, the first aggregator provider in Spain and fourth after Google, Twitter and Facebook.

This blogger shares the concerns of Keller, but somehow has hopes that the new Article 32.2 will not bring such an apocalyptic scenario. Creators and right-holders of music works whose "unwaivable" rights were managed via collecting entities seem to have found their way to obtain from Spanish Courts respect for works shared under the free culture movement. Since this measure is ultimately linked to the publishers' rights --despite being designed as the new ancillary right to news aggregators-- and not all publishers do agree with the AEDE levy, the collateral damage as described by Keller perhaps will not come to pass".