

Given the saga of Germany’s ill-conceived and poorly implemented “ancillary copyright law” one would have thought that another European government wouldn’t immediately duplicate the mistake. But that’s exactly what’s happened in Spain.

Spanish newspaper publishers, hoping to turn Google into a source of compulsory licensing revenue, worked to pass a new law that imposes strict fines for the uncompensated appearance of snippets in search results. Under the ostensible notion of protecting copyright owners against online piracy, the law was concocted by Spanish newspaper group AEDE.

The anti-piracy elements of the law are not well crafted apparently. According to an article in the Hollywood Reporter, what constitutes piracy under the law, which goes into effect on January 1, 2015, is “vague” and “weak.” Other critics argue the law is a “missed opportunity” to truly combat online piracy.

This muddle probably resulted from the effort to combine genuine anti-piracy legislation with a “Google tax” using the same rationale for both. Because the Spanish and German cases are almost identical what happened in Germany is instructive and probably predictive for Spain.

In Germany a publisher consortium called VG Media aggressively lobbied the German Parliament to pass the ancillary copyright law. The not-so-veiled ambition was to compel Google (and other news aggregators) to pay copyright fees to the publishers. The hope was to start collecting fees from Google and others upon the passage of the legislation.

The move totally backfired for VG Media. Google decided to remove publishers’ snippets and limit their content to headlines in search results as a way to limit its potential liability under the German copyright law.

VG Media said that the loss of traffic from the disappearance of rich content in search results might cause some of their members “to go bankrupt.” Accordingly they requested that Google “reinstate” their snippets and thumbnails without compensation — at least for the time being.

We can probably expect a similar sequence of events and cat and mouse game in Spain between Google and the Spanish publishers.

Google issued a statement that expressed disappointment at the passage of the Spanish anti-piracy law but also a desire to continue to work with Spanish news publishers. The question is who wants to work more with whom? Because of the German example Google likely has the upper hand in any forthcoming negotiation.

Spanish publishers are probably hoping that courts and regulators will both force Google to include their content and compel Google to pay for it. However, they’re unlikely to have it both ways.

Spain was also the country of origin for the case that gave us the now-infamous “right to be forgotten.”