In the first part In this series of articles, we made an initial approach to the Royal Decree-Law 24/2021 of November 2, which transposed into Spanish law, among others, the Directive (EU) 2019/790 of the European Parliament and of the Council of April 17, 2019 on copyright and related rights in the Digital Single Market; the so-called “Copyright Directive”. In this first part, we focus primarily on the responsibility of service providers (such as YouTube) when their users upload works or other content protected by intellectual property rights.
In this post, we focus on the changes brought about by the Royal Decree-Law. to the publishing world in its digital form; changes that are marked by the need for “quality journalism,” as I had pointed out in my considerations in the Copyright Directive the European legislator.
Thus, the national legislator, in accordance with the provisions of Article 15 of the Directive, has introduced into Title VI of Book Four of the Royal Decree-Law a new related right in favor of newspaper publishers and news agencies located in Spain. Under this new right, they are granted the exclusive right of reproduction, as well as the right to make available to the public with respect to online use of your press publications.
However, this right, which is included in the new Article 129 bis of the Intellectual Property Law and has a duration of two years, does not have an effect. erga omnes, by limiting its application to online service providers (or, in other words, by being able to authorize them to exercise it). Publishers and news agencies may not invoke this right against authors whose works are included in their press publications, or against other rights holders.
At the same time, and in line with the introduction of this new exclusive right for publishers and press agencies, the legislator has amended the limit set out in Article 32.2 of the Intellectual Property Law (commonly known as AEDE fee (acronym for Spanish Newspaper Publishers Association) or Google rate), eliminating the fair compensation (non-waivable and subject to mandatory collective management) that was envisaged in favor of publishers and other rights holders when electronic content aggregation service providers made available to the public insignificant fragments of content published in periodicals or on websites.
This mandatory compensation in favor of publishers was the reason why Google withdrew its service from Spain in December 2014. Google News, following their refusal to pay for this item. With the new amendment, it is expected that Google News return to Spain in early 2022.
The fact that mandatory compensation has been eliminated does not mean that Google should not seek authorization from newspaper publishers to reestablish Google News; nor that, automatically, they should not have to pay anything for the aggregation of this content. In its amended version, Article 32.2 of the Intellectual Property Law now establishes that these online service providers must obtain authorization from press publishers in accordance with the new Article 129 bis when they make texts or fragments of texts from their publications available to the public.
The main problem that may arise in practice is that this authorization, although subject to certain formalities, does not necessarily have to be granted by the management entities (CEDRO, for example). Newspaper publishers may grant them to service providers, either through individual licenses or through collective agreements. In any case, all negotiations must be conducted in accordance with the principles of contractual good faith, due diligence, and transparency, while always respecting editorial independence.
The fact that newspaper publishers now have to negotiate (individually or collectively) with online service providers (and, in particular, with Google), and are not entitled by law to mandatory compensation for the use of their publications, can perhaps be seen as an opportunity for larger publishers (whose bargaining power with providers will be greater); but clearly as a disadvantage for smaller publishers, who are deprived, under the new amendment to the law, of the protection of mandatory collective management.
As a counterbalance to this negotiating power granted to newspaper publishers, the legislator restricts the applicability of their right to a series of cases, expressly excluding hyperlinks and the use of individual words. Thus, in line with the provisions of the second paragraph of Article 32.2 of the Intellectual Property Law—which remains almost intact under the Royal Decree-Law—, When service providers make single-word search engines available to the public, such provision shall not be subject to authorization by newspaper publishers provided that: 1) it is produced without commercial purpose; 2) it is strictly limited to what is necessary to provide search results in response to queries previously made by a user to the search engine; and 3) it includes a link to the source page of the content.
Finally, in section 8 of this new Article 129 bis, the legislator refers to the authors of works included in press publications (for example, journalists who have written articles), stipulating that they should receive an appropriate share of the revenue received by publishers from the use of their publications by online service providers.; “being able to resort to collective management mechanisms in order to exercise this right on a discretionary basis.”.
The spirit of this provision is clearly to protect authors participating in press publications; however, the wording leaves many questions regarding its applicability in practice (as, in fact, do many of the other provisions of the Royal Decree-Law).
This series of posts This is merely an initial overview of this Royal Decree-Law and the changes it entails. We will have to wait and see how it develops in practice and whether, as intended by the Directive in its recitals, these measures contribute to achieving “quality journalism.”.
[Article written by Marilena Kanatá and Javier Serrano Irurzun]
