Did Spain just declare war on the commons?

Two weeks ago the lower chamber of the Spanish parliament approved a number of changes to Spain’s Intellectual Property Law that directly threaten the ability of Spanish internet users to contribute to the commons. The law introduces a number of modifications to copyright law that expand the scope of exclusive rights over areas that were previously outside of the exclusive rights of copyright holders at the expense of users rights and the public domain.

The main reason for this law seems to be the desire of Spanish newspaper publishers to get a legally guaranteed income stream from news aggregation sites. What is happening in Spain is a modification of the (largely failed) attempt by German news publishers to make news aggregators (such as Google News) pay for using small parts of news articles that they link to.

Compared to the German attempt, the Spanish approach is more elaborate, and more dangerous. While the German legislators simply created an ancillary right for press publishers and left it up to the publishers whether and how to enforce, waive or license the right, the Spanish law (English translation of the relevant bits here) approaches it from the user side of the equation:

Here, the law creates a right for ‘electronic content aggregation providers’ to use ‘non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated’ without the permission of the rights holder. However such uses require payment of a ‘fair remuneration’ to the rights holder (via a collecting society). This is a right that content providers already have and can choose to license or waive assuming the non-significant fragments are copyrightable and absent an applicable exception or limitation.  What this new legislation does is eliminate the ability of providers to choose how to exercise this right, and impose a mandatory royalty on reusers even for content that has been made available under a public license such as Creative Commons or that is otherwise available under an exception to copyright or in the public domain.

Collateral damage

While at first this may sound like a limitation of the exclusive rights of publishers, this construction works in the opposite direction. Because the new right is unwaivable, creators and publications who want to encourage others to reuse their content cannot waive the requirement that users must pay for aggregating their content. With this construction the proposed law aims to make sure that publishers cannot decide to not enforce their right when the publishers actually benefit from the activities provided through aggregation platforms (as has been done in Germany). Unfortunately the unwaivable nature of this new right has the potential to cause massive collateral damage among other internet users.

As the new right would apply to all ‘content disclosed in periodic publications or on websites which are regularly updated’ it would not only apply to traditional news publications but pretty much any website that is regularly updated (such as a blog). While traditional publishers may welcome this new right, it is fair to assume that there is a substantial number of creators and publishers who do not want to be remunerated for re-use of non-significant fragments taken from their websites either because their business models is based on traffic or because they want to share their writings as widely as possible.

Even worse the new law also threatens render ineffective the Creative Commons licenses that are used by many creators to explicitly allow others to reuse their creations for free in many situations. By making the right unwaivable aggregators are required to pay fair remuneration to a collective rights management organisations even if a creator has chosen to apply a Creative Commons license that allows the free reuse of her creation.

These negative effects of the new law do not limit themselves to the field of blogging and general web publishing. Over at Global Voices, Renata Avila makes the case that the revised law would also impact open access publishing activities by Spanish scholars and academic institutions:

The current reform of Spain’s copyright law incorporates a new levy on universities that is related to open access to publications. Under the policy, universities that want to share research or other content for free will be prohibited from doing so beyond the confines of their institution and personnel. In other words, if you are an author from a university and you want to share beyond the academic world and someone links to your journal article, that person must pay even if you do not even want the payment. A percentage of these fees will be collected by the Spanish agency CEDRO (Centro Español de Derechos Reprográficos) and the virtual campuses of universities will be required to comply.

Given the above it is clear that what may have started as another ill-conceived attempt to support the failing business models of traditional publishers by extending the scope of copyright is in fact a massive attack on the commons and business models that do not rely on limiting access to creative works. Not only does this have negative effects on the users of copyrighted works but it also frustrates authors’ right to choose how to share their works and under what terms.

As such the upcoming amendment of the spanish IPR law is another illustration of the dangers of looking at copyright law primarily as an enabler of a specific set of business models.

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