From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Sunday, 16 February 2014

An ancillary right over news to be soon introduced (also) into Spanish law?

Germany did it ...
It's really all about links these days. 

Following last Thursday's hyperlinking decision of the Court of Justice of the European Union (CJEU) in Case C-466/12 Svensson [here and here], it is already (and again) time to think about what kind of legal protection (if any) may vest on ... hyperlinks (and snippets). 

Readers will certainly remember that in 2013 Germany adopted the Leistungsschutzrecht für Presseverlege [‘LSR’, for which this Kat has no particular sympathy here and here], also known in jargon as Lex Google

This piece of legislation extended press publishers’ copyright by granting them an ancillary right over news content. The newly created sections 87f-h of the German Copyright Act provide for the exclusive right of press publishers to exploit their content commercially for one year, thus preventing search engines and news aggregators from displaying excerpts from newspaper articles without paying a fee.

For a while, also France (here) and Belgium (here) considered doing something similar before abandoning (for €€€) this idea. 

In late 2013, Italy too seemed to like the German solution (here). Italian Government adopted a plan known as Destinazione Italia which - among other things - is (was?) composed of a bill that would contain measures in favour of Italian press publishers, including the introduction of what may look like a new ancillary right over news content. Use of the conditional is now necessary, since we do not know what will be the fate of Destinazione Italia, following resignation of Enrico Letta as Prime Minister and the creation of a new government led by Matteo Renzi.

While waiting to know what will happen in Italy, it seems that there might be also another country in Europe interested in doing what the Germans did: Spain.

... Italy may do it ...
This Kat learnt from El Mundo and El Pais that on Friday last Spanish Government approved a draft reform of the Ley de Propiedad Intelectual, which includes the introduction of a new ancillary right over ... news content. 

Spanish press publishers might be able to charge search engines [keep reading] for using "non-insignificant" fragments of “information, opinion and entertainment” grouped together [might this imply that only news aggregation services would have to pay?]. Apparently Spanish Government did not clarify the length required for relevant snippets to trigger the right to an equitable remuneration for their use [but this is not unprecedented, as even German LSR does not say].

... Spain will do it?
According to Variety and The Hollywood Reporter (which this Kat happens to consult slightly more frequently than El Mundo), the amount of compensation required for use of news content might be determined by means of an agreement to be reached by relevant stakeholders. 
The Spanish Association of Daily Newspapers (AEDE) welcomed this initiative, calling it "the most important step taken by the Spanish government for the protection of the press” and clarifying that, overall, this is not a demand for subsidies, but rather the quest for a legal framework that would recognise the value of news content and protect it against third parties' misuses. 

This Kat is all in favour of recognising the value of news content. But does this mean that services like those provided by news aggregators tarnish the value of that content? 

Although there have been studies that have concluded in the sense that news aggregators may not be complementary to newspapers' websites but rather have a substitution effect, how can one explain what happened in Germany when the LSR entered into force (that was on 1 August 2013)? 

That very day, in fact, Google News became opt-in in Germany and a number of major German publishers promptly declared their intention to have their content indexed therein [does anyone have more up-to-date data as to how many German publishers have asked to join Google News so far?].

Have you seen
the draft provisions?
In parallel to the proposed new ancillary right over news content, Spanish Government also announced the introduction of fines between EUR 30,000 and EUR 300,000 for those who redirect users towards infringing content. Spanish Minister of Education José Ignacio Wert said that “Spain cannot be Somalia in issues of intellectual piracy”. 

Besides wondering why a parallel was drawn with Somalia as regards (intellectual) piracy, this Kat also wonders whether mere hyperlinking to allegedly infringing content may fall within the scope of copyright protection and, as such, be tantamount to infringement. It is worth recalling the in Svensson the CJEU did not clarify expressly whether any difference should exist between linking to lawful content as opposed to unlawful content, but rather focused on the 'new' public requirement [watch this space, because the Kats will come back on this very issue, ie whether actual lawfulness of content matters].

According to Reuters, a spokesperson for Google in Spain said that the company could not comment on Spanish Government proposed measures because it had not yet seen the exact wording of the intellectual property reform bill. But have any IPKat readers seen it? If so, do let us know!

UPDATE on 17/2/2014: From Katfriend Fidel Porcuna (Bird&Bird) come further details and information: "It seems El Mundo published a filtered version of the proposal here. In addition, please note that the Criminal Code has been also reformed in order to introduce the crime of hyperlinking ("facilitating access to protected contents") with sentences of imprisonment up to 4 years and fines up to 2 provided that certain requirements are met, none of them focusing on the "new" public requirement. Those requirements are (somewhat cryptic): taking knowledge or control of the means facilitating the access or localisation of unlawful works; providing updated, classified lists of hyperlinks (even if these are provided by third-parties); activity not restricted to a mere technical or automatic treatment of the content provided by the third parties without supervision, control or cooperation; and with profit (even indirect) and to the detriment of third parties."  


Patricia Koch said...

Dear Kats: it is not just a change in this point; it is a completely new law on intellectual property. The definition of private copy is changed, as well. The government has summarised the Project ( which it is sending to Congress, but the text as such has not been published yet. It will, though, once it reaches our Parliament.
Best regards,

Eleonora Rosati said...

Thanks Patricia! Could you please let us know once the draft text has been made available? Thanks!

Patricia Koch said...

Of course, Eleonora. Today it was received and noted in Congress. The text should thus be available very son:

Proyecto de ley.

Proyecto de Ley por el que se modifica el Texto Refundido de la Ley de Propiedad Intelectual, aprobado por Real Decreto Legislativo 1/1996, de 12 de abril, y de la Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil. (121/000081)

Presentado el 14/02/2014, calificado el 18/02/2014



Jesus sanchez said...

Dear Eleonora,

The draft has been just today available:ágina1)

Kind regards,

Jesús Sánchez

Eleonora Rosati said...

Thanks so much Jesus!

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