News Publishers in Spain Are Taxing Google For Using Their Content. Could It Work in the US?
Would a tax on search engines help news publishers in the US? Would the court even rule against Google?
Recently, it was reported that Spain has passed an intellectual property law that requires search engines and news aggregators (like Google News) to pay news publishers when snippets of their content appear on the site. Publishers argued that it is copyright infringement whereas Google contended that it is within the bound of fair use to link parts of news stories in their aggregator feeds. Publishers won and Google lost (and will have to pay news publishers an unspecified amount come January 1, 2015).
This comes from a push from the European Union to crack down on Google (as the EU really doesn’t like Google), to pay publishers for infringement of copyrights. The EU wants similar intellectual property laws all across the EU.
Could this ever work in North America?
I’m no lawyer (no matter how much my father keeps pushing) but I did do some research and, surprise, this wouldn’t work in North America. One, tech companies are far too powerful over publishers and lobbying groups. And two, we tend to stick by our fair use laws.
That’s actually part of the reason that search engines developed in the US and not the EU. Website caching is considered an infringement in the UK. As this blog post points out, however, fair use in the US and Europe both use fair use though the argument tends to hold up in the US more (and litigation works faster in the US).
Fair use in general is determined by four guiding principles in the US: the purpose of use, the nature of the copyrighted work, the amount of work used and the effect on the market.
Cynically, no publisher in the U.S. is going to go after tech giant Google. They’ve tried, and Google’s fair use argument has held up for Google’s book digitization project. However, that doesn’t mean the fair use argument is fail-proof.
According to this Mashable article, the Associated Press successfully sued Norwegian company Meltwater for violating copyright laws in its newsletter. Although Meltwater took the Google-approved fair use argument, the courts rejected this defense because a search engine “transforms” the copyrighted work into something else. What Meltwater did was act as a competitor rather than a facilitator similar to Google News and other aggregate sites.
So publishers, don’t get super excited about Spain’s recent victory against Google unless you happen to operate out of Spain or the EU (if so, good for you!). Publishers in North America, however, don’t be completely disheartened by the fair use argument. If you see something shady going down with your content, contact a lawyer.
Image Credit: Carlos Luna