Prof. Raquel Xalabarder
Chair of Intellectual Property
Universitat Oberta de Catalunya.
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EXECUTIVE SUMMARY
In February 2014, the Spanish Government proposed a bill to amend the Spanish Intellectual Property Law (TRLPI).[1] Among other amendments, the bill introduces an ancillary right in favor of press publishers for the aggregation of news and other copyrighted content available online by means of a statutory limitation that authorizes the aggregation of online contents subject to an unwaiveable equitable compensation, managed by the corresponding Collective Management Organization [CMO]. Search engines are also authorized to link to this copyrighted content, this time without any remuneration.
The proposed statutory license has been severely criticized from all sides: by Spanish consumers’ associations, aggregators, search engines and providers of internet services, in general, as well as by some press-publishers. The bill is now under parliamentary proceedings.
The scope of the proposal is vague and, because of its imprecise language, may affect a broader range of online linking activities beyond the purportedly targeted news aggregation and search engines. The statutory license proposed will likely apply beyond the Spanish territory and Spanish works and aggregators and have deterring effects on the functioning of the EU internal market. In addition, the unwaiveable nature of the statutory compensation will negatively affect the development of the public-licensed commons and open-access endeavors. As warned by the Spanish Competition Authority, the remunerated statutory license proposed will likely have anticompetitive effects on the market of news aggregation and search engines. No evidence to support either an economic loss by press-publishers caused by the online activities or a market failure has been submitted to justify the Government’s proposal.
The proposal amounts to an attempt to subsidize an industry at the expense of another and it does so by distorting copyright law rules and infringing EU law and international obligations.
The Spanish proposal is contrary to EU law and case law. The Court of Justice of the European Union [CJEU] recently ruled that linking to copyrighted contents freely available online does not amount to an act of communication to the public (Judgment of 13 Feb. 2014, C-466/12 Svensson), [2] thus invalidating the premise upon which the proposal is based. In addition, despite being portrayed as an “adaptation” of the quotation limitation, the proposal introduces a new ancillary right which contradicts the harmonized scope of the right of making available online (Art.3 Directive 2001/29/EC)[3] and will have deterring effects on the EU internal market.
Even when assuming that the provision of a link involves an act (or several acts) of exploitation, online news aggregation is mandatorily exempted by the quotation exception in Art.10(1) Berne Convention [BC],[4] without requiring any compensation. The fact that Art.5(3)(d) ISD, which has the same scope of its BC counterpart, failed to formally address the mandatory nature of the quotation limitation, does neither affect nor alter the obligation of Spain and the EU to enforce the scope of uses exempted under Art.10(1) BC. The Spanish proposal is, accordingly, contrary to the BC obligations and –by means of its incorporation- contrary to the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPs].[5]
Furthermore, aggregation and search engines play a key role in the development and enhancement of the fundamental right to freedom of information granted in Art.10 European Convention on Human Rights of 1950[6] [ECHR] and Art.11 of the Charter of Fundamental Rights of the EU of 2000[7] [EU Charter]. The Spanish proposal does not correctly balance the copyright interests with the fundamental right to information, thus disregarding Art.7 TRIPs which obliges States to enforce IP law in a manner “conducive to social and economic welfare and to a balance of rights and obligations”. Similarly, the proposal disregards the principle of proportionality which has been consistently applied by the CJEU to balance copyright with other fundamental rights and public interests.
For all these reasons, the remunerated statutory license proposed for news aggregation and search engines should be deleted from the bill currently examined in Parliament. Otherwise, Spain and the EU will be liable for non-compliance with their international obligations under the BC and TRIPs. Nevertheless, even if the proposal were to be approved, it would be deactivated under the CJEU doctrine of interpretation in conformity, which sets aside any domestic provision which is contrary to international obligations and EU law.
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NOTES:
1 Texto Refundido de la Ley de Propiedad Intelectual, approved by Royal Legislative Decree 1/1996 of April 12; Available at http://www.mcu.es/propiedadInt/docs/RDLegislativo_1_1996.pdf [hereinafter TRLPI]
Prof. Raquel Xalabarder 2014
2 CJEU, 13 Feb. 2014, Svensson et al v. Retriever Sverige AB (C-466/12); Available at http://curia.europa.eu/juris/document/document.jsf?docid=147847&doclang=EN
3 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society; Available at http://ec.europa.eu/internal_market/copyright/copyright-infso/index_en.htm [hereinafter ISD]
4 The Berne Convention for the Protection of Literary and Artistic Works of Sept.9, 1886; Available at http://www.wipo.int/treaties/en/ip/berne/ [hereinafter BC]
5 The Agreement on Trade-Related Aspects of Intellectual Property Rights of Apr.15, 1994; Available at http://www.wto.org [hereinafter TRIPs]
6 The Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ratified by Spain in 1979); Available at http://www.echr.coe.int/ [hereinafter ECHR]
7 The Charter of Fundamental Rights of the EU (2010/C 83/02); Available at http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm [hereinafter EU Charter]
