Last week the IPKat hosted this piece
by Elena Molina and Sergio Miralles on the controversial new Spanish IP law. Not to be outdone, the 1709 Blog has commissioned an analysis of its own. The author is our friend Valentina Torelli
who, like Elena and Sergio, is currently practising in Spain. Here's Valentina's assessment:
announced online last week, the Spanish Law
no. 21/2014, the highly-publicised intellectual property law reform, was
published on 5 November, provoking shock reactions within the world of ISPs. The
law comes into force on 1 January 2015, except for some provisions which will
be effective one year from publication.
changes to the previous intellectual property law, a green light has been given
to the contested new Article 32(2), which makes the author’s right’s limitation
for review subject to a compulsory economic compensation, when content
aggregators communicate to the public literally “negligible fragments of contents”, taken from news publications or from latest news websites, which
are directed at forming public opinion or have informational or entertainment
of Article 32(2) was intended to better comply with Article 5(3)(d) of Directive
2001/29 (the InfoSoc Directive):
“quotations for purposes such as criticism or
review, provided that they relate to a work or other subject-matter which has
already been lawfully made available to the public, that, unless this turns out
to be impossible, the source, including the author's name, is indicated, and
that their use is in accordance with fair practice, and to the extent required
by the specific purpose.”
interesting part of the new Spanish provision is the inalienable nature of the economic
compensation – which results to be compulsory collective management right for
publishers and authors – in relation to making available negligible parts of
publications. This compensation has been nicknamed the “AEDE tax” [tasa de la Asocición Espanola de Editores]
as it will go to the benefit of publishers or other “right holders” and will be
collected once a year by CEDRO, the Spanish collective society
for authors and publishers, according to the Annual Budget Law.
That said, although
news-aggregators are exempted from asking for authorization to recompile
periodicals’ and reviews’ irrelevant portions of contents, they will have to
pay a predetermined amount of money to make them available to the public, irrespective
of whether the legitimate right holder is a member of the Collective Society.
This means that the collected compensation could be divided among the
Collective Society’s members, without necessarily being paid to the legitimate
right holder. Likewise, the publications released under Creative Commons will also
be compensated by means of the new provision although their nature is quite the
opposite to a ‘compulsory economic right’ philosophy.
event, such limitation for review to author’s rights does not cover the communication
to the public involving thumbnail images of images and photographs taken from the
previously identified publications.
legislative technique perspective, some perplexities may arise in regard to the
criteria whereby the part of publications provided by content aggregators could
be considered negligible (fragmentos no
significativos) but protectable under copyright law and, therefore,
exempted under condition of an economic compensation for the sake of the public
interest in access to culture and information (Articles 44 and 20 Spanish
It seems that the solution would be to carry
out an assessment on a case by case basis, assuming that no authorization or
compensation is due when the publications’ fragments are originally summarized by
the aggregator and then communicated to the public together with the link to
its original source.
important point is the identification of the content aggregators, as there is
always a tendency to take into consideration the big players in the market,
disregarding other smaller operators, providing the same type of services
addressed by these legislative measures. In this regard, sooner or later at
international level the category of content aggregators should be regulated on
its own for the purposes of copyright protection.
Provided that social networks should not fall
under the definition of content aggregators for the purposes of the reform, it
would be interesting to analyse whether the limitation provided in Article
32(2) of the new Spanish Intellectual Property Law would apply to blogs, databases
or applications, undertaking reviews of news publications. Indeed, Spanish law no.
34/2002 implementing Directive
2000/31 (the E-Commerce Directive) provides no definition of “service
providers”, it being necessary to refer to the European legal framework and, in
particular, to Article 1(2) of Directive
98/34 as amended by Directive 98/48, which provides the following
“ ‘service’, any Information Society service,
that is to say, any service normally provided for remuneration, at a distance,
by electronic means and at the individual request of a recipient of services.”
emphasis should be on services “normally provided for remuneration”, given that
the provision of a service “at distance” “by electronic means” regards the
inherent functioning of the Internet and that “at the individual request”
involves the active participation of the users querying the internet itself. It
follows that the category of providers engaged in content aggregation could be
wider than is normally conceived when thinking of internet service providers,
just because the concept of remuneration could be differently interpreted.
to the beneficiaries of the reform, again it is unclear whether the new
provision encompasses only the traditional media of communication or also
covers other players such as blogs and online reviews to the extent that they engage
in news updates. Likewise, it seems that if the publication whose negligible
fragments are aggregated was considered a collective work, the fragments’ authors
would step back in respect to publishers’ right to the economic compensation.
to the second part of Article 32(2), the new mandatory compensation may also
entail browsing ISPs’ activities, when they offer users the search tools for spare
words, included in the negligible portions of publications, and they do not
comply with the three cumulative requirements provided by the law. Indeed, the
review limitation to the author’s rights applies only if the availability of
such search tools to the public (i) does not pursue the browsing ISP’s own
commercial purpose, (ii) is strictly limited to the offer of search results in
accordance to the users’ previous entries in the search engine and (iii) provides
the link to the original webpages to which the protected contents belong.
case, the provision has two main points.
fact that the search tool regards spare words included in the publications,
without specifying how many words or combination of them can be exempted.
said, the reason underlying the introduction of the economic compensation concerns
the publishers’ prerogatives to protect the undue exploitation of their intellectual
property rights on the internet. In particular, it is aimed at contrasting the direct
competition between them and content aggregator ISPs, in relation to access to
information without the latter sharing the costs the publishers bear in producing
their original content.
search services cannot be associated with the provider’s own commercial
purposes, although it is not clear whether the provision is conceived only for
pay-services or if it also embraces indirect revenue sources.
the argument relating to the anticompetitive effect of content aggregators’
services against both offline and online publishers, the Spanish National
Commission for Markets and Competition (CNMC) in its report
of 16 May this year took a totally different stand. In the light of the
several versions of the Intellectual Property Law’s draft reform, the
Commission proposed modification of Article 32(2), recommending that the
limitation for review be reconsidered as regards the mandatory nature of the
economic compensation and the exclusive assignment of its collection to collective
societies. The main points of the report can be summarized as follows:
1. The content aggregator ISPs’ and press-clippers’ competitive role
affecting publishers could not be confirmed.
The Commission observed that website holders could apply technological
protection measures, such as the standard program robots.txt,
to prohibit or to limit crawling and the aggregation of website content
according a tailored degree of availability. However the snippets’ aggregation
provides publishers with visits to their websites, as complete access to
information is only possible on their pages. This takes into account the huge
economic investments that many, if not all, publishers make in order to
increase their indexing in search engines. Effectively, the Commission achieved a more favorable result in the
contractual balance of interests between all the interested players as
regulated by the market. In this regard, as content aggregators have raised
concerns all over the European Union, it is worth mentioning that the German
Federal intellectual property law had introduced an obligation
for them to obtain publishers’ licences to communicate to the public full protected
contents, with only the making available of snippets being exempted from such
licensing. Moreover, the Commission emphasised that, while the predetermination of economic
compensation would be ineffective, since it would not serve the publishers’ different
and variable interests, the advertising revenues derived from the linking to
their websites from those of content aggregators would be significant.
Indeed, that content aggregators could contribute economically to
publishers’ adaptation to the online market is not a brand new idea: for instance,
in 2013, Google signed
an agreement with the French Press Association under the eye of the
French Government, whereby a dedicated fund, amounting to 60 million euros, was
established to facilitate the press’s transition to the online environment.
2. Horizontal competition among content aggregators ISPs would be undermined
As regards the competition between content
aggregators, the CNMC warned about the discriminatory character of the compulsory economic
compensation, in that it would be a measure preventing the access to the
content aggregators market, which the actual ISPs did not have to get over.
waiting for the entry into force of the new Article 32(2) next year, it will
not be long before we see how affected content aggregators will deal with the
new provision and adapt their business models to the rules of the Spanish web,
and whether the Spanish internet will change its mode of operation.
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