An inside look at how Spain’s copyright law targets Google and other news aggregators

by Thompson Coburn LLP
Contact

News aggregation services, particularly Google News, appear to be under attack in several European countries. Belgium, Germany, and most recently Spain have tried to limit Google’s ability to aggregate news from news media sources in those countries, mainly by requiring Google to pay royalties to the publications that appear on Google News’ feed. Most U.S. news reports on these developments have been fairly basic, setting up a “Europe versus Google” conflict without giving much detail.

To get a better idea of what is going on, I recently communicated with Professor Miquel Peguera, an Internet law expert at the Open University of Catalonia in Barcelona. He writes a blog on ISP Law, co-edits the Journal of Intellectual Property, Information Technology and E-Commerce Law, and has been a visiting scholar at Columbia University. He graciously shared some helpful observations about the new Spanish law.

Mark Sableman: Professor, we’ve all heard that Google actually shut down its Spanish version of Google News because of this law. That sounds pretty drastic. What did the law actually say?

Miquel Peguera: The provision is Art. 32(2) of a major copyright revision law. It's available here (in Spanish). It refers to providers of aggregation services, and it covers only the publishing of non-significant fragments (typically snippets). It does not establish liability, but a levy system. You don't need authorization, but you need to pay a levy, compulsorily handled by a collective society. However, this levy needs further regulatory development.

Sableman: Did the law really target just Google News?

Peguera: Yes, it appears that the main purpose of the law was to make Google News pay for its aggregation of Spanish news sources. Now that Google News has closed down its services, it is possible that this provision will never be enforced, or even deleted from the law. And we’re not sure if the regulations needed to support it will finally be developed.

Sableman: What about other aggregators, including businesses that aggregate on an incidental basis?

Peguera: The actual provision refers to online aggregators which make available to the public non-significant fragments of contents which have a purpose of informing, creating public opinion or entertaining and have been published in periodical publications or in websites that update periodically. Thus, other aggregators that systematically put together links to those contents, showing the headline and a short snippet, will also fall under the provision. However, the law expressly leaves out the operation of search engines, that is, the provision of search results based on a search query, as long as making available those results has not a commercial purpose in itself.

As for business that occasionally link to online newspaper articles, I understand they would clearly fall outside the so-called Google Tax, as it only deals with actual aggregation services.

Sableman: So are occasional links always lawful in Spain? Even if they are embedded links?

Peguera: If you actually "reproduce" the article (you make and store a copy of it) you're infringing the reproduction right. If you merely link to the article's original source (even if it is via an embedded link), the current approach, after the Svensson ruling by the Court of Justice of the European Union, is that it is not a copyright infringement, provided that you are linking to the original source and that source is freely accessible to everyone (i.e. it is not behind a pay wall or requires password or subscription). In those cases, the CJEU deems that while the one who establishes the link "communicates" the work, he does not communicate it to a new public, different from that already taken into account by the copyright holders when putting online the article for the first time.

Sableman: That fits with my conclusions generally about the right to link. I’ve written about the right to link since the early days of the Internet, and it seems fairly settled that a mere hyperlink to content on the public Internet is almost always allowable, unless there is something deceptive or misleading about the way the link is portrayed.

Peguera: That’s right, for links to public materials. If what you're doing is linking to contents which are located behind a pay wall (circumventing the access restrictions), then some courts may consider that you are carrying out an unauthorized communication to the public and hence a direct copyright infringement.

On the other hand, if the linked-to content happens to be illegal (for instance defamatory content) you are still covered under the so-called linking safe harbor, and thus you will not be liable if you lack actual knowledge that the content is unlawful or upon obtaining that knowledge you disable the link.

Sableman: So what are readers in Spain doing these days without Google News? Actually going to newspaper and television station websites and reading the news there directly? Going to other aggregators? Reading the news from Latin American versions of Google News?

Peguera: That’s hard to say, but some are most probably using just Google search, which still allows you to search within “news,” and thus getting results from news sources.

Sableman: Professor, thanks so much for helping us understand the Spanish law. For those who want more information on Internet law in Spain, the Open University of Catalonia has some excellent articles by Professor Peguera and his colleagues, available here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP
Contact
more
less

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.