The Remunerated Statutory Limitation for News Aggregation and Search Engines Proposed by the Spanish Government; Its compliance with international and EU law

Resumen

The Spanish Government proposed the introduction in the Spanish Copyright Act of an ancillary right in favor of press publishers for the online aggregation of news. Because of its imprecise language and poor drafting technique, the proposed statutory license may apply to a broader range of online linking activities beyond news and may negatively affect the development of the public-licensed and open-access contents. In addition, it will likely have anticompetitive effects on the market of news aggregation and search engines, and deter the functioning of the EU internal market.

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.  On the one hand, the ancillary right proposed is contrary to EU law: it contradicts the CJEU ruling that linking to copyrighted contents freely available online does not amount to an act of communication to the public (Svensson) and the harmonization of this right under Art.3 Directive 2001/29/EC.

On the other, its approval would render Spain and the EU liable for non-compliance with their international obligations under the Berne Convention and the TRIPs Agreement. Even when assuming that linking involves an act of exploitation, online news aggregation is mandatorily exempted by the quotation exception in Art.10(1) BC, without any compensation. Furthermore, to the extent that aggregation and search engines play a key role in the provision of and access to information, the proposal fails to correctly balance the copyright interests with the fundamental right to information, thus disregarding Art.7 TRIPs as well as the principle of proportionality - consistently applied by the CJEU.

For all these reasons, its approval would render Spain and the EU liable for non-compliance with the BC and TRIPs obligations. In addition, if 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.