While at the beginning of the week only three Member States had fully implemented the Directive (the Netherlands, Hungary and Germany), and could therefore be scored on all performance levels, it is already possible to track the level of activity across the board. As more Member States reach the finish line, we will attribute final scores and throw them into the contest. 

The first, second and third places (so far!)

So far, Germany is the front runner: the Federal Ministry of Justice and Consumer Protection held a transparent and inclusive discussion, which lasted for more than a year, and set a high standard for protecting user rights against overblocking. Hungary is in second place, in part due to the bonus point it got for fast-tracking the implementation of the new digital education exception, during the outbreak of COVID-19, having created room for remote teaching while educational institutions were closed. The Netherlands have been the first out of the door, with a draft text ready for an online consultation less than a month after the publication of the Directive, but the Dutch government failed to demonstrate its commitment to protecting user rights in the implementation, pushing it to the third place so far (with the possibility to still earn some extra points, if the Minister of Justice decides to make use of the power that received in the implementation law, to provide further rules for the application of Article 17).

France and Denmark, which have rushed to implement on time only the provisions that strengthen the position of creators and right holders, have been scored for the implementation of Articles 15 and 17, but will only officially enter the contest once they have implemented the remaining parts of the Directive.

Skipping the parliamentary debate

At this point, all Member States (except Portugal) have, in some way or another, initiated the legislative procedure, but some processes have been far from transparent or inclusive. In France and Italy, the Parliament delegated the legislative powers in the government, meaning that those countries will skip a central stage of the democratic process, which is the parliamentary debate and vote over the concrete implementation proposal put forward by the government. In France, where the Ministry of Culture went through the implementation of Articles 15 and 17 without providing any opportunity for stakeholders to share their views and concerns about those provisions, no public consultation is expected for the remaining parts of the Directive. In Italy, the Ministry of Culture is said to be planning to, at least, run a public consultation once its draft decree is finalized.

In Ireland, the Department of Business, Enterprise and Innovation held a series of public pre-draft consultations, each focused on a different part of the Directed and all carefully prepared, but a few days ago announced that the Directive was going to be transposed into Irish law by way of regulations contained in secondary legislation, without submitting the actual draft law to public discussion and without further parliamentary debate.

In Spain, a first round of public pre-draft consultations was organized at the end of 2019, but since then the Ministry of Culture went silent, leaving meeting requests by civil society representatives unanswered, while at the same time meeting with collecting societies and other industry representatives. Most recently, there have been rumours of a Royal Decree that would give the Spanish government the power to also implement the Directive without any further parliamentary deliberation.

Portugal is the slowest country so far (it has not published any draft text and has not even organized a public consultation), and civil society representatives have also been treated less favourably by the Ministry of Culture than representatives of rightholders: the latter have been invited to provide feedback on the implementation and have been granted the opportunity to meet with the Minister of Culture, while meeting requests sent by civil society organisations (including by COMMUNIA) to the Ministry have been left unanswered.

Meaningful consultation procedures: some more, others less

Fortunately, the procedures in that handful of countries seem to be the exception, rather than the rule. The vast majority of Member States attempted to give all stakeholders, and not only a selected few, opportunities to participate in the discussions. Some countries decided to consult stakeholders at the very beginning of the process, before embarking in the drafting process, others kept discussions alive throughout the process, and others yet reserved most time for dialogue after releasing the draft.

Of the 19 Member States that organized pre-consultation processes, 8 held formal consultations, 8 opted for setting up working groups or entering into other forms of dialogue with stakeholders on the provisions of the Directive, and only 3 organized both a consultation and meetings with stakeholders before starting the drafting process. After the release of the draft, 7 countries organized formal consultations, 6 engaged in dialogues with stakeholders, and 2 (Germany and the Netherlands) opted by running formal consultations and engaging also in constructive dialogues with the stakeholders.

So far, Greece, Italy, Finland, Malta, Norway, Portugal, Poland, Spain, Sweden are the only countries that have not publicly released any draft implementation text. France and Denmark have yet to release proposals for the parts of the Directive that have not yet been implemented.

It is safe to say that the Eurovision DSM contest is far from over, and that the results can still change dramatically. We will keep tracking the process and updating not only each country’s scores, but also each country’s page in our implementation tracker, where detailed information and documentation about each process can be found.

The post Eurovision DSM Contest: the once in a decade copyright reform contest appeared first on COMMUNIA Association.

The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve.

Best efforts obligation vs an obligation of result

At the core of the issue is the uneasy relationship between the obligation to make best efforts to prevent the availability of specific works contained in Article 17(4)b and the requirement in Article 17(7) that any measures implemented by platforms must not lead to the prevention of the availability of works that do not infringe copyright. In its interventions the Commission made it clear that it views Article 17(7) as an “obligation of result” that establishes the stronger legal norm, which therefore takes precedence over the weaker “obligation of best efforts” in Article 17(4). In the course of the hearing both the Council and the Parliament backed this assessment. In other words, all three EU institutions made the case that where there is a conflict, the protection of the fundamental rights of users must be prioritised over requests by rightholders to block the availability of their works.

In response to questions about the mechanism proposed by the Commission in its guidance consultation, both the Commission and the Council expressed their belief that this conflict of norms can be reconciled by a mechanism that limits automated filtering to “manifestly infringing” uses of works and that requires human review of any matches where there is any likelihood that the use is legitimate. Given the absolute nature of the result obligation in Article 17(7), this would further mean that user uploads must remain available while they are under review and can only be removed once a platform has established that a use is indeed infringing.

In making these arguments in front of the Court, the European Commission effectively doubled down on the approach outlined in its guidance consultation, which has recently been subject to heavy criticism from a group of seven national governments including France and Spain. The Commission’s position is further strengthened by the Council and the Parliament’s interventions in front of the Court, which provided support for the Commission’s reasoning. While it remains to be seen whether the CJEU will be convinced by these arguments (the ruling is not expected until the summer of 2021), it seems clear that the Commission will have to build its implementation guidance on this line of argument. This could have considerable impact on how Member States have to implement the provisions of the directive.

A temporary inconvenience vs irreparable harm

While formally on the same side of the case, the two Member States intervening in the case (France and Spain) brought forward an entirely different line of argument to defend the legality of the directive, which at key points contradicted the arguments brought forward by the EU institutions. According to France and Spain, the proportionality of any limitations of freedom of expression in the directive must be established in relation to the purported objective of the directive. Both France and Spain argued that the directive seeks to address a power imbalance between certain platforms (online content-sharing service providers) and rightholders by bringing the first into the scope of copyright. In simple terms, this is done by establishing that these platforms are directly liable for communication to the public when they make available works uploaded by their users. As i have argued elsewhere, this view is based on a misunderstanding of the “true intent” of the legislator on the part of those national governments, who seem to consider the significant changes that have been made to the text of Article 17 from its inception to its final adoption to be a historic accident rather than an expression of the legislator’s will to protect users’ fundamental rights.

While both Member States concede that their interpretation of Article 17 will ultimately result in situations where measures to prevent the availability of works limit the freedom of expression of users, they argue that in such cases the ex-post complaint and redress mechanism contained in Article 17(9) provides sufficient protection for users’ rights. Both Member States disagreed vehemently with the position of the EU institutions and argued that any conflict between the fundamental rights of rightholders and users must always be resolved in favour of rightholders. Both argued that the harm to rightholders that can be caused by temporary availability of infringing works on platforms is much greater than any harm to users caused by the temporary blocking of non-infringing uploads. They further claimed that while infringing works could “go viral in mere seconds” causing “massive economic harm” to rightholders, requiring users to file complaints when non-infringing uploads are blocked and keeping these uploads offline while the complaints are reviewed would merely constitute a “temporal inconvenience” that is justified given the purported overall objective of the directive to strengthen the position of rightholders vis-a-vis platforms. Consequently, both France and Spain reject the mechanism proposed by the Commission in its guidance consultation as “incompatible with Article 17”.

It remains to be seen how far the Court will be convinced by this line of argument that hinges more on a proclaimed “original intent” of the directive than on its actual text. It is clear that France and Spain are effectively fighting a two-front battle. On one front, they argue that the Polish case is without merit. On the other, they attempt to undermine the EU institutions’ arguments on why the Polish case is without merit in order to defend their own maximalist interpretation of the provision. This contradiction was not lost on the Polish Government, which in its final remarks observed that the interpretation of Article 17 put forward by the Commission and the Council goes directly against what France has argued and that “this clearly shows that there is a problem with Article 17 as such”.

Questions by the Court

A substantial number of the questions from the Court and from the Advocate General focussed on better understanding the relationship between the best efforts obligation in Article 17(4) and the results obligation in 17(7) and the mechanism proposed by the Commission in its guidance consultation. Particular attention was paid to the question of whether uploads must remain available while they are under review or should be blocked until their legality has been confirmed. This strong focus on the guidance consultation almost gave the impression that the hearing was not so much held for the purpose of determining whether the contested provisions must be annulled, but rather to understand if the mechanism proposed by the Commission would achieve an internal balance of Article 17 that offers sufficient protection for the fundamental rights at stake.

One key weakness shared by all parties defending Article 17 was a total failure to point to any measures other than upload filters to effectively comply with the best efforts obligation contained in paragraphs (4)(b) and (c). Despite repeated questions from the bench, none of the parties could name alternatives to the use of filtering technologies. The Commission made a weak attempt to list a number of different methods for filtering (fingerprints, hashes, metadata, keywords), the Council invoked artificial intelligence (without providing any specifics) and Spain pointed to “fuzzy hashing”. In the end, none of the interventions managed to undermine the Polish claim that (at least given the current state of technology) the only effective way to comply with Article 17(4)(b) and (c) is the use of filters. As Poland pointed out in its final statement, the different technological approaches mentioned constitute different types of filtering technology, rather than alternatives to filtering technology.

A final set of questions revolved around the prohibition of general monitoring obligations in Article 15 of the E-Commerce Directive. The Court showed interest in the relationship between the blocking obligation outlined in Article 17(4) and the ban on general monitoring obligations contained in Article 17(8). On this issue, the AG seemed particularly sceptical that Article 17(4)(b) and (c) would not result in general monitoring. At one point he called the European Parliament “naive” for doubting that “major rightholders would submit long lists with 1000s of works to be blocked” as soon as the directive were in effect.

A long winter wait ahead

Based on yesterday’s hearing, it remains plausible that the CJEU might strike down the contested provisions in Article 17. If it does, this would likely be on the grounds that they constitute a general monitoring obligation in violation of the E-Commerce Directive and, consequently, the Charter of Fundamental Rights.

It is also conceivable that the Court could identify minimum criteria for the protection of the fundamental rights of users. While these could fall along the lines of the mechanism put forward by the Commission, this is far from certain at this stage. A decision along those lines could, however, turn elements of the Commission guidance from non-binding recommendations to legal obligations on Member States.

Given that a ruling will not take place until after the implementation deadline for the directive (the AG opinion is due on the 22nd of April 2021 which is only 6 weeks before the implementation date), the Commission will need to publish its guidance before the Court has ruled and Member States will need to make implementation choices without having access to the Court’s judgment.

The post CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work appeared first on COMMUNIA Association.

Earlier this week the Spanish Association of Publishers of Periodical Publications (AEEPP) published an English version of a study that assesses the impact of the introduction of the ancillary copyright (article 32.2 of the Spanish Copyright Act) in Spain. This article states that a copyright fee must be paid by sites aggregating or otherwise linking to online news to the publishers of such news. These payments (referred to as a Google Tax, after the fact that they seem to be primarily intended to extract revenue from Google) are collected by the CEDRO copyright collection society.

The study comes to a pretty devastating conclusion that clearly shows that granting a new right to press publishers is highly problematic and will not have the desired result of stabilising the business models of struggling publishers:

This analysis concludes that there is neither theoretical nor empirical justification for the introduction of a fee to be paid by news aggregators to publishers for linking their content as part of their aggregation services. Likewise, the arbitrary nature of the fee, which prevents publishers from opting out of receiving the payments, inflicts harm on a large number of outlets, particularly small publications.

Moreover, the introduction of such a fee has a negative impact on competition, not just for the aggregator segment, but also for online publications and, ultimately, for consumers, including readers and advertisers.

[…] On the more distant horizon, the negative impact will be more significant, discouraging the development of innovative content and platforms in the ecosystem of online news consumption in Spain.

In light of these findings, it is clear that the reform followed the interests of a particular group of publishers which, given the decline of their business, sought to obtain an additional source of income from one of the Internet giants, even to the detriment of other publishers, to the development of the online news production and aggregation sectors in Spain and, ultimately, to consumers (including advertisers) and to social welfare.

Infighting between publishers

The last paragraph of the conclusion provides an interesting insight in the divisions among publishers. The AEEPP commissioned study is pointing the finger at “a small group of publishers affiliated with the Association of Publishers of Spanish Newspapers” (AEDE) which represents the big newspaper publishers and accuses them of putting the particular interests of large established newspapers above the interests of the wider publishing sector.

This clearly shows that the new right for publishers which affect all publishers is only supported by a small subsection of the sector. And even among newspaper publishers support seems to be waning as evidenced by a recent editorial in El Pais (the biggest daily newspaper in Spain) which argued that the new right was a mistake and called on European legislators not to follow the failed Spanish example.

Left pocket, right pocket

It seems that the proponents of the link tax have also realised that all of this severely undermines the case for new rights for publishers on the EU level (if there ever has been such a case). Incapable of pointing to evidence that the new rights have had the desired effect (more revenue for publishers and journalists) they have simply started to invent their own evidence…

On Tuesday last week, CEDRO (the collecting society in charge of collecting the link tax) announced that it had finalised its first licensing agreement with the online new aggregator upday.com and presented this  as evidence of the fact that the link tax “seeks a balance between” both publishers and news aggregators.

The problem with this logic? Upday.com is owned by Axel Springer, the German publishing conglomerate that is the driving force behind the introduction of the German ancillary copyright for press publishers. It is clear that as such Axel Springer has a clear incentive to show that ancillary rights for publishers “work”, even if that means engaging in “left pocket, right pocket” transactions that do not generate a single extra euro for struggling publishers and the journalist working for them.

The post Spain: Publishers pay themselves in desperate effort to show that giving them extra rights actually has an effect appeared first on COMMUNIA Association.

Strong voice of El Pais

El País, the largest and internationally most renowned Spanish daily newspaper, has published an op-ed strongly criticizing the idea of introducing the ancillary copyright for press publishers:

But anybody who thinks that those rights can be turned into a fortress from which to impose obligatory and inalienable fees is mistaken. This is a model that has been shown to fail in Germany, in 2013, and in Spain in 2014. Then, efforts to impose an obligatory fee on Google for the use of links to news stories provoked a major fall in web traffic for the Axel Springer group and the closure of Google News in Spain.

What is crucial, El Pais understands the value of digital technologies for press publishers, while many others, especially big German publishers, threat internet as a threat for their business model.

Thanks to the new digital technologies, we are able to reach millions of people we would never have been able to using the old, traditional print methods, while at the same time offering our readers more and better stories in real time and in more attractive formats.

The business of selling only print newspapers is over and will not be back. What publishers should do is to  is adjust their business models to benefit from opportunities created by internet, and not asking for more (copy)rights without providing any evidence that more right actually help them (instead of just hurting others).  El Pais voice, coming from a country with first-hand experience of the ancillary copyright, is invaluable in this ongoing debate.

El Pais is  not the only one who claims that the best scenario for article 11 is to delete it. The same idea was raised by various groups including other press publishers,   European Research Centres and European Copyright Society. Many MEPs also oppose the idea.

Cooperation v. confrontation

What is underlined in the El Pais op-ed is that a way forward shall be based on cooperation between the media and technology companies, rather than on confrontation. Not all publishers share the same future-oriented approach. Recently Christian Van Thillo, CEO of the Belgian publishing house De Persgroep, has published an op-ed in POLITICO titled ‘Using copyright laws to protect free speech’. He has built her pro-ancillary copyright narrative on ill-funded grounds:

Our websites have become platforms for news, comment and debate. But on average 47 percent — and sometimes as high as 67 percent — of readers who find our content on other platforms stay on the landing page and do not click through to publishers’ websites. As a result, a small number of very large companies, and a large number of smaller companies (often gilded with the term “startups”), are getting raw materials for free, which they then reuse and sell with no benefit to those who produced them. This does not happen in other industries.  

Such conclusion was driven from Eurobarometer survey where participants were asked “When you access the news via news aggregators, online social media or search engines, what do you most often do?” The participants were offered three options, but could only choose one:

1. Browse and read the main news of the day, without clicking on links to access the whole articles. (47%)
2. Click on available links to read the whole articles on their original webpage. (45%)
3. You never access the news via news aggregators or online social media. (6%)

The question referred to the “most often” behaviours, not the only one of certain participant and multiple answers were prohibited, therefore it is challenging to claim that the survey presents accurately users’ practice regarding news access. Moreover, these numbers also show that news aggregators are beneficial for publishers since a vast majority of participants use them to access news.

We hope that the final decision on the ancillary copyright will be based on market facts and evidence, instead of emotions against “commercial theft and the wholesale scrapping, copying and monetization of our [publishers’] content” as Christian Van Thillo describes aggregators providing better and more targeted mechanisms to search content that publishers were ever able to create.

The post Spain’s El Pais newspaper comes out strongly against ancillary copyright madness appeared first on COMMUNIA Association.

Spain’s ancillary copyright law came into effect on January 1, 2015,  after extensive lobbying by the Association of Publishers of Spanish Newspapers and in spite of opposition from other industry players and civil society groups (including us) who were concerned that the new rights would have a negative impact on media diversity and the ability to access news and other information. As a first casualty of the new, unwaivable right, Google closed its Google News service in Spain.

The new study, which was commissioned by the AEEPP and carried out by NERA consulting, confirms most of the concerns raised by opponents of the ancillary right. Based on comScore data for the first 3 months of 2015 the study finds that the closing of Google News (and a number of smaller news aggregation services) that followed the introduction of the new law has led to a (predictable) decline of internet traffic directed at Spanish newspapers: Traffic to newspaper sites has dropped more than 6% on average and 14% for small publications.

The comScore data is in line with previous studies that have found that the effect of news aggregators on online news sites is a positive one. They have a “market expansion effect”, driving visitors to news websites that would otherwise not end up there. According to multiple studies analyzed as part of the NERA/AEEPP study, the “expansion effect” clearly outweighs the “substitution effect” of news aggregators (the fact that some users of news aggregators are satisfied with the information provided by the aggregators and do not end up visiting the websites of the original publications). The implications of this for the online news market are evident:

The negative impact on the newspaper sector is straightforward: the fee will result in the removal of an important method of attracting readers, which will result in decreased advertising revenues. The evidence available shows that the impact on traffic in the short term has been negative, and that small publications have been most affected

But it is not only the online news sector (which was at least partially in favor of the new ancillary copyright) that is negatively affected by the new law. According to the analysis presented in the study there are also serious negative consequences for news aggregators and other information intermediaries, including:

Barriers to innovation. There are a variety of innovative news aggregators that, compile customized services related to the users’ activity on platforms such as social networks, or that have focused on content aggregation projects for mobile phones, whose development is being hindered. […] Potential developments, such as automatic source readers or algorithmic aggregators designed to deliver dynamic content, will also be negatively impacted.

and

Regulatory uncertainty and right to quote. The modification of the law has generated regulatory uncertainty that has already affected the plans of many firms in the sector. […] Similarly, the new legislation infringes on the right to use Creative Commons-licensed content, as well as the right to quote.

The negative impact on the “right to quote” and on the ability to release and use information under Creative Commons licenses was one of our main concerns when the plans for the Spanish ancillary copyright first surfaced. This study confirms our concerns that as a side effect of  attempting to protect the business models of a few publishing houses the new law limits the abilities of spanish citizens and businesses to freely share information and to contribute to the commons. Unfortunately, these are not the only negative effects on news consumers that NERA has identified. As a result of the Spanish law news consumers also face…

… Less variety of content and innovation penetration. The new legislation is detrimental to consumers because it reduces content variety and impedes the ability of innovation to penetrate the market. Consumers also have less access to information, to new products and services from aggregators, and to content from media outlets.

All in all the NERA/AEEPP study shows a fairly damning picture of the effects of the recent law, which will hopefully be noticed by those who are pushing for the introduction of an ancillary copyright at the EU level. It is clear that simply inventing new rights out of thin air is not a very effective way to support press publishers and maintain media diversity. It may actually have the opposite effect.

With regard to the situation in Spain it remains to be seen whether the consequences of the new law are bad enough to convince the legislature to repeal it. History shows that IP rights almost never get abolished once they are introduced- no matter how ineffective they are in achieving their original objective. Such an outcome therefore seems not very likely-Database Directive, anyone?

The post Research confirms: new Spanish ancillary copyright is actually good for no one appeared first on COMMUNIA Association.

The main reason for this law seems to be the desire of Spanish newspaper publishers to get a legally guaranteed income stream from news aggregation sites. What is happening in Spain is a modification of the (largely failed) attempt by German news publishers to make news aggregators (such as Google News) pay for using small parts of news articles that they link to.

Compared to the German attempt, the Spanish approach is more elaborate, and more dangerous. While the German legislators simply created an ancillary right for press publishers and left it up to the publishers whether and how to enforce, waive or license the right, the Spanish law (English translation of the relevant bits here) approaches it from the user side of the equation:

Here, 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.

Collateral damage

While at first this may sound like a limitation of the exclusive rights of publishers, this construction works in the opposite direction. Because the new right is unwaivable, creators and publications who want to encourage others to reuse their content cannot waive the requirement that users must pay for aggregating their content. With this construction the proposed law aims to make sure that publishers cannot decide to not enforce their right when the publishers actually benefit from the activities provided through aggregation platforms (as has been done in Germany). Unfortunately the unwaivable nature of this new right has the potential to cause massive collateral damage among other internet users.

As the new right would apply to all ‘content disclosed in periodic publications or on websites which are regularly updated’ it would not only apply to traditional news publications but pretty much any website that is regularly updated (such as a blog). While traditional publishers may welcome this new right, it is fair to assume that there is a substantial number of creators and publishers who do not want to be remunerated for re-use of non-significant fragments taken from their websites either because their business models is based on traffic or because they want to share their writings as widely as possible.

Even worse the new law also threatens render ineffective the Creative Commons licenses that are used by many creators to explicitly allow others to reuse their creations for free in many situations. By making the right unwaivable aggregators are required to pay fair remuneration to a collective rights management organisations even if a creator has chosen to apply a Creative Commons license that allows the free reuse of her creation.

These negative effects of the new law do not limit themselves to the field of blogging and general web publishing. Over at Global Voices, Renata Avila makes the case that the revised law would also impact open access publishing activities by Spanish scholars and academic institutions:

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 Español de Derechos Reprográficos) and the virtual campuses of universities will be required to comply.

Given the above it is clear that what may have started as another ill-conceived attempt to support the failing business models of traditional publishers by extending the scope of copyright is in fact a massive attack on the commons and business models that do not rely on limiting access to creative works. Not only does this have negative effects on the users of copyrighted works but it also frustrates authors’ right to choose how to share their works and under what terms.

As such the upcoming amendment of the spanish IPR law is another illustration of the dangers of looking at copyright law primarily as an enabler of a specific set of business models.

The post Did Spain just declare war on the commons? appeared first on COMMUNIA Association.