Google announces end of News in Spain

IPKat readers will remember that last year Germany introduced an ancillary right that grants press publishers the exclusive right to exploit their contents commercially for one year, thus preventing search engines and news aggregators from displaying non-insignificant excerpts of newspaper articles without paying a fee. 

As explained here, the German initiative was aimed at recouping some of the revenues that traditional news publishers have lost to the web. The underlying idea was also that news aggregators like Google News would not really boost visits to newspaper websites, but rather have a substitution effect. 

What however happened the very day the new law entered into force was that Google News became opt-in in Germany, with a number of major publishers announcing their intention to waive [this is an important detail: keep reading!] their ancillary right, and thus be indexed by Google.

Leaving now Germany for milder climates, a few weeks ago Spain passed its major IP reform [discussed here and here]. This is due to enter into force on 1 January 2015. Among other things, as previously announced and despite the criticisms of CNMC (the Spanish Competition Authority) that expressed concerns about possible anti-competitive effects, Spain decided to follow Germany on this path, and also introduce an ancillary right over news content.

Bruno was not that hungry,
but had to eat anyway because he has
an unwaivable right to lunch

Unlike the German right, the new Spanish right will be "irrenunciable y se hará efectivo a través de las entidades de gestión de los derechos de propiedad intelectual" (Article 32 of the Ley de Propiedad Intelectual, as amended). This means that the right cannot be waived and requires those who wish to display non-insignificant excerpts to pay a licence fee.

So basically, unlike their German counterparts, Spain press publishers would not be able not to license their contents without also getting a fee, even if they wanted to. 

Anyhow, the interesting piece of news is that yesterday Google announced that as of 16 December, Google News will be no longer available in Spain. Apparently this is the first time globally that Google will shutter its News service. 

As explained by Richard Gingras, Head of Google News, "[t]his new legislation requires every Spanish publication to charge services like Google News for showing even the smallest snippet from their publications, whether they want to or not. As Google News itself makes no money (we do not show any advertising on the site) this new approach is simply not sustainable."

While a decision of this kind is certainly available to a tech giant like Google that provides its services on a world-wide basis, would the same be true also for smaller, Spanish companies or start-ups that wished to enter or remain in the Spanish news aggregation service market? Or, rather, will the Spanish initiative have the side effect of pushing them out of the market tout court?

This Kat ignores the reasons why Spanish Government decided to make the ancillary right unwaivable [so any hints from Spanish readers are very welcome], but overall is not particularly impressed with this move. In particular, it would seem that the way the new right is tailored may be in contradiction with one of the basic principles of private law, notably the principle to contractual self-determination. This Kat is by no means an expert on Spanish private law, but she recalls from her early days as a law student in Florence that a basic distinction is the one between rights that can be waived and rights that cannot. The latter include rights like those pertaining to one's own person (so called subjective or personality rights), while the former tend to include all those rights having an economic dimension, like property and intellectual property rights. 

... Not
everywhere,
it seems

In addition to strictly legal arguments (which may possibly look not-so-sexy to policymakers), wouldn't have Spanish publishers been better off if they had been left with the possibility to decide whether to exercise or waive their right to an "equitable remuneration" for the display of their contents? 

Besides the economic data about website visits and whether news aggregators actually drive traffic to or away from newspaper websites, it would seem sensible to leave rightholders the choice as to how their contents could be found and exploited over the internet. This Kat learned recently that a simple technical trick to avoid having your content indexed on, say, Google Search is to use robots.txt.

In any case, the story with news aggregators is not over. Besides press publishers arguing in favour of the introduction of rights similar to the German and Spanish ones also in other EU Member States, eg Italy, IPKat readers will remember that one of the first moves of new EU Commissioner for Digital Economy and Society, Günther Oettinger, was to state in interviews with German newspapers that it may not be a bad idea to charge Google for "tak[ing] intellectual property from the EU and work[ing] with it". 

Spain and German go global (or at least EU-wide)? We'll see ... Stay tuned!