Google News Shuttered in Spain Thanks to “Ancillary Copyright” Law

Today, Google has announced that it will be permanently shutting down the Spanish version of Google News, effective from December 15, 2014. The shutdown comes in direct response to amendments to the Spanish intellectual property law (Ley De Propiedad Intelectual) imposing a compulsory fee for the use of snippets of text to link to news articles, by online news aggregators that provide a search service.

A similar fee was first introduced in German law in 2013, where it was described as an “ancillary copyright” (or Leistungsschutzrecht). But the fee actually has no heritage in copyright law, which preserves the right to make quotations without remuneration under international law (in fact, it is the only such mandatory limitation to copyright). The German law has been a manifest failure, where publishers willingly forfeited their right to payment from Google, as soon as they realized how much traffic they would lose from not being indexed on Google News.

Spain decided to one-up Germany by making the right to payment inalienable, so that even the news organization quoted is not permitted to waive it. The shuttering of Google News was therefore predictable, and it is hard to see what value this has achieved for the press in Spain or for Spanish (and Spanish speaking) Internet users. Time will tell whether Yahoo News will follow suit—since Yahoo, unlike Google, does monetize its news service with ads.

Are these laws just a big stick for European countries to use against large US tech companies? Certainly, that is part of the motivation; authorities are concerned that US-based tech companies are profiting from European data without paying their fair share of tax on the revenue earned. But if that was all this was about, there would be much more direct ways of addressing it than by passing special-interest amendments to copyright law to benefit press publishers.

What concerns EFF more is that these ancillary copyright laws form part of a broader trend of derogation from the right to link. This can be seen when you examine the other parts of the Spanish copyright amendments that take effect in January (here in PDF)—notably placing criminal liability on website operators who refuse to remove mere links to copyright-infringing material.

This year’s European Court of Justice ruling against Google Spain on the so-called Right to be Forgotten, is part of the same larger trend, in requiring search engines to remove links to content judged to be “irrelevant”, even if the content is true. We are also disturbed by comments made by new European Digital Commissioner Günther Oettinger who has foreshadowed [German] a broader roll-out of ancillary copyright rules throughout the EU.

Online intermediaries may be a convenient scapegoat for the fading fortunes of European newspaper publishers, but banning the use of text snippets alongside website links is a misguided and—now self-evidently—counter-productive approach. Once it becomes illegal for aggregators to freely link news summaries to publicly-available websites, it becomes that much easier for those who want to prohibit other sorts of links, such as links to political YouTube videos, to make their case.

The chickens have already begun to come home to roost for Spain with the withdrawal of Google News, and this should sound alarm bells for the Commissioner and for other European countries considering similar measures. It’s time for Europe to turn back from this misguided path of Internet content regulation before more damage to the open Internet is done.

Fair Use and Intellectual Property: Defending the Balance

International

Search Engines