Spain's long debated online tax on Google News and other aggregation sites passed the Congress of Deputies, Spain's lower chamber of Parliament, last week and it is as bad as Google (and anyone who depends on Google) could have feared.
Not only does the new law require Google News as well as aggregators like Flipboard (and even Facebook for that matter) to pay for the use of an excerpt, it also explicitly prevents publishers from granting permission for the excerpts to be used for free.
Passed as part of a set of reforms and changes to Spanish copyright law, canon AEDE (as the Google tax is known) grants publishers an inalienable and non-revokable right to a payment for any use of their content.
Julio Alonso shared the news earlier today. Writing over on Medium, he says:
Once you read the actual proposal, it becomes quite clear that Spanish newspaper editors have learned from the German experience. There the government passed a similar law that forced Google to pay newspaper editors if they were included in Google News. When approved, Google excluded all newspaper editors from Google News and asked anyone wanting to be listed to reapply explicitly declaring that they renounced to be compensated. All newspaper did reapply not wanting to miss out on the traffic it generates. Google won.
The Spanish law proposal declares that editors cannot refuse the use of “non-significant fragments of their articles” by third parties. However, it creates a levy on such use to compensate editors and declares it an inalienable right (derecho irrenunciable).
The introduction of the inalienable right was done to avoid what happened in Germany. If you are a digital editor that publishes with a copyleft license, like myself, and you minimally understand how the internet actually works, you cannot decide to not charge Google News. It is compulsory. More than a right it is an obligation. Therefore, Google cannot exclude sites requiring payment from Google News. It would still need to pay for those it includes, even if they do not want to be compensated.
The bill has only passed the lower house at this time, but local commentators expect that it will also pass the upper house in short order and become law.
And that is when the excrement will impact the rotary impeller unit.
While Google has in the past responded to similar laws by changing their policies, it is widely believed that Google will simply pull out of Spain entirely, followed shortly thereafter by other search engines, Pocket, Twitter, Facebook, Digg, Flipboard, and virtually every other startup with a service which could be used to share an excerpt.
To make matters even worse, Spain's own news aggregation site, Menéame, is also talking about moving abroad. This Reddit-like site reports that they considering moving the company out of Europe entirely in order to escape this law because they're not sure whether simply moving to another part of the EU will be enough.
And the law could even affect indie bloggers like me; under Spain's new law I might have to pay for the privilege of quoting the excerpt above. While European law does have a legal concept called "right to quote", it's not clear how that will be affected by the new law. I also cannot find specifics on the Spanish version of that law, so I am at a loss to understand financial and legal implications.
At this point no one understands the full ramifications of the new law, in part because few have seen the final language. But one thing we can guess is that if this law passes as currently described it won't just hurt tech companies; the law will also make it harder for Spanish readers to find relevant news stories and stay informed.
When I last covered the proposed Spanish law in May of this year, I described it as a textbook example of insanity, in that it is a new attempt at an idea which has repeatedly failed in the past.
Time and again, whenever someone tries to force Google to pay for the free advertising it gives to news sites the search engine finds a way to avoid paying. In Germany last year Google changed its policies to require explicit permission for free use of excerpts and then delisted anyone who didn't agree. Google is subsequently being sued in Germany for copyright infringement, antitrust, and other misdeeds.
In Belgium in 2011, the newspaper rights management company Copiepresse won a 5-year-old lawsuit in which Google was accused of pirating content by sharing links. Google subsequently complied with the court order to remove the offending links, leading to cries of vicious retaliation. After a brief negotiations Google paid a token fee and got to continue to use the links and excerpts. Google also paid 60 million euros to head off a law in France similar to the one now being considered in Spain.
And now Spain is going to try an idea which has only seen marginal success elsewhere. Would anyone lay odds on how badly it will not succeed in Spain?