The transformative and occasionally disruptive effect of the Internet on traditional news publishing has been widely discussed, and as DisCo has previously covered, some European states are reacting to these changes with a form of tax-and-subsidy system that would benefit domestic news publishers at the expense of mostly foreign Internet services.
France and Germany have both made efforts in this direction, and in February the Spanish government began considering a similar proposal. A provision appearing late in the development of Spain’s ongoing reform of its IP laws would subject normal Internet snippets — i.e., quotations — to a special “ancillary” copyright.
The proposed statute appears to impose a compulsory license each time a website provides even a small snippet of a newspaper article. Curiously, it also subjects the reuse of any photo to permission from the news publisher, whether the photo is protected by copyright or not, once the photo is posted to any “periodically updated” website. Not only does this sound like an administrative nightmare, it also runs afoul of international copyright norms in several ways. The long-standing Berne Convention (a) prohibits nations from restricting the right to quote, (b) limits IP protection to expression, not facts, and (c) states that copyrights do not extend to “news of the day.”
By restricting Internet services like search and social media from functioning as they do elsewhere in the world, this proposal also represents a new trade barrier, upending how both the Internet and copyright law ordinarily function. An IP-based tax on quotations is therefore not only bad policy, but it also appears to violate the EU and Spain’s international free trade commitments.
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