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New Spanish law "raises very serious questions under international law" says Cyber-Law expert.

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New Spanish law "raises very serious questions under international law" says Cyber-Law expert.

A professor of law and expert on intellectual property says new Spanish legislation forcing aggregators to pay for the material they link to "raises very serious questions under international law" and will "fail in the marketplace", should it pass into law.

Michael Carroll, Professor at American University's Washington College of Law and Director of the Program on Information Justice and Intellectual Property, also accused media outlets and publishers of trying "to have it both ways" in their relationship with aggregators, and labelled the legislation in Spain a "political theatre" in its attempts to address the power of aggregators.

Discussing the legal ramifications the new law would have, Professor Carroll cited the Berne Convention, which Spain has ratified, and which protects "authors of artistic and literary works."

“The Berne Convention fundamentally protects authors, but Article 10 requires countries to permit quotations from published works,” he said. “If this law is enacted, aggregators would have a strong argument that Spain is in violation of its obligation to permit aggregators to quote from published news sources.”

Professor Carroll also dismissed the "political theatre" of the legislation as merely "symbolic".

"Interest groups and legislators have a limited ability to change things," he said. "It (the new Spanish legislation) is a symbolic act of loyalty to the interest group. Trade associations or collecting societies need to feel like their like values are being respected."

For Andy Sellars, Berkman Center's Corydon B. Dunham First Amendment Fellow at Harvard University, the law could have a significant impact on innovation.

“We are focusing ourselves on the paradigm case, Google News, but we’re raking in a whole lot of other people in the process,” he said.

“There are going to be uses of aggregation that are not going to be by multi-billion dollar companies - there will be uses from people starting up new services where the thought of having to process these payments alone could be a significant burden, for financial or critical reasons. I would hate to see a law like this applied such that you would have to then pay the target of your criticism.”

“One of the values we always think about on the internet is the idea that any bright person can connect a new service, and it can compete on its merits,” he continued. 

“Every time we do things like a forced-compensation culture, we’re requiring a degree of sophistication on the part of the new entrant that means it’s not going to be as much of a meritocracy as we like to imagine it being.”

Yana Welinder, an academic and Stanford CIS affiliate, said the legislation also “raises issues of freedom of expression”.

“It will likely have a chilling effect on some people’s speech,” she said.

“There will always be people in organisations that are willing to take a risk and test the law, and see what the intellectual property collecting agency may do, while many others are not going to take the risk and are not going to quote from sources.”

“When people think of aggregators doing a bad thing it’s when they take complete articles,” she added. “This goes much broader than that to include even snippets of text, and it could have a chilling effect.”

Sellars agreed that the legislation was “not good for a policy of freedom of expression.”

“To the extent that we’re allowing the creator of some piece of information to control how that information is controlled and subsequently digested, repackaged and transmitted to the world, you raise the possibility of it being used for a bad end,” he said.

Discussing the financial effect of the legislation, Professor Carroll that the new law would "fail in the marketplace", given the “power” that aggregators have over publishers.

"Publishers don't want to be invisible," he said.

He cited the example of Germany, where a law similar to the new Spanish legislation has been in place since August 2013.

Google responded to the ancillary copyright legislation by forcing all publishers to submit a statement of their acceptance to having material shown on Google's services.

Those who did not submit the statement were no longer shown in the search-engine's results, and lost the traffic which Google previously sent.

He also discussed the issue of defining aggregation. If I tweet a headline and snippet from an article, would that be distinguished from aggregator sites robotically doing the same?

"It’s difficult," he admitted.

For Andy Sellars, there is an important distinction to be made in defining aggregation.

“For me, the more you’re positioning your aggregator to be a compliment of the original, the better off you’re going to be,” he said. “The more that you’re a substitution of the original, the worse off you’re going to be.”

While numerous European nations have attempted to pass similar legislation in recent years, the UK and the US have not broached the topic.

Professor Carroll suggests this is down to "different legal cultures."

"There is a continental approach to copyright which makes it possible there," he continued. "In the UK, such legislation would fall foul of the Anglo-American freedom of expression culture."

"The fact you were horrified at the thought of not being able to tweet the headline of an article is one such example," he concluded.


Paul McClean


2014-05-14 10:35

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