Spain's Ill-Conceived 'Google Tax' Law Likely To Cause Immense Damage To Digital Commons And Open Access
from the digital-cluelessness dept
Techdirt recently wrote about Spain’s imminent and almost unbelievably foolish new copyright law designed to prop up old and failing business models in the publishing sector. Mike mentioned that it was potentially disastrous for things like fair use, Creative Commons and public domain material — so broad is the reach of this new law’s “inalienable right” for publishers to be paid when snippets of works appear elsewhere. Now Paul Keller has put together a great post on Communia’s blog exploring the details of this particular threat:
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.
It’s that last fact — that the mandatory royalty can’t be turned off, even for works released under Creative Commons licenses that are explicitly designed to encourage payment-free sharing — which is so disturbing. It threatens to undermine not only Creative Commons licenses by negating one of their key features, but also the central feature of a digital commons — that anyone can draw upon it freely in order to create new works that are then returned to an enriched commons for the benefit of all.
I can’t believe even the Spanish legislators who put together this misguided law really intended this attack on the Creative Commons world, but that simply suggests they are largely clueless about how the digital world and its commons operate. That’s confirmed by another post on this topic, this time from Renata Avila, writing for Global Voices. She explores the likely impact of this new law on another uniquely-digital phenomenon — open access publishing:
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 Espa?ol de Derechos Reprogr?ficos) and the virtual campuses of universities will be required to comply.
The new law’s provisions thus negate the whole point of open access, which is to facilitate the free sharing of academic materials on a global scale so as to accelerate research and its benefits.
That’s naturally a tragedy for the researchers who want to share their work so that others can build on it, but it’s also a tragedy for Spanish society. If this law is passed, it means two of greatest benefits arising from the widespread use of the Internet — the creation of a digital commons that can be shared by all, and the wider dissemination of knowledge thanks to open access — will be seriously harmed. As a consequence, gifted entrepreneurs and academics in Spain are likely to move to other countries with a greater understanding of these matters, helping to drive innovation and intellectual discovery there instead, while Spain may well find itself turning into a digital backwater.