PRO/CNMC/0002/14 PROPOSAL RELATING TO THE MODIFICATION OF ARTICLE 32.2 OF THE DRAFT ACT MODIFYING THE REDRAFTED TEXT OF THE INTELLECTUAL PROPERTY ACT

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1 PRO/CNMC/0002/14 PROPOSAL RELATING TO THE MODIFICATION OF ARTICLE 32.2 OF THE DRAFT ACT MODIFYING THE REDRAFTED TEXT OF THE INTELLECTUAL PROPERTY ACT 16 May 2014

2 Contents I. BACKGROUND... 3 II. CONTENT... 5 III. VALUATION... 6 IV. CONCLUSION... 10

3 Spain s National Authority for Markets and Competition (CNMC), in a Plenary Session, in its meeting on 21 May 2014, has approved this report relating to the modification introduced in article 32 of the Draft Act modifying the Redrafted Text of the Intellectual Property Act, approved by Royal Legislative Decree 1/1996, of 12 April, and Civil Procedure Act 1/2000, of 7 January, in which the implications of the same are analysed from the point of view of effective competition in markets and efficient economic regulation. This report is approved on its own initiative, in the exercising of the competences of the CNMC, in application of article 5.1 of Act 3/2013, of 4 June, on the creation of Spain s National Authority for Markets and Competition. I. BACKGROUND I. 1 General framework The existence of regulations protecting intellectual property is justified by the need to create a system of incentives dynamically facilitating, to a greater extent than the market, the creative activity of artistic, literary and scientific works. The fact that law on competition and intellectual property law pursue the same purpose of promoting both competition and innovation as well as the achievement of well-being and the efficient assignment of resources, is a commonly-assumed theory. Having said this, in the regulatory design of protection systems it is necessary to take into account not only the interest of the holders of rights on obtaining protection, maximizing their positions of benefit, but also to minimize negative external circumstances which may be derived from the said protection, for example, in the form of less competitive tension, with the resultant higher prices, lower quality and lesser innovation. From the point of view of the search for economic efficiency, an appropriate balance must be found between all of these factors, as well as adjustment to the general principles of efficient economic regulation (need, proportionality, minimum restriction), to facilitate benefits from the regulations in question. For its part, the Spanish Authority on Competition has had the opportunity to make pronouncements on activities related to intellectual property rights, fundamentally in relation to collective management entities of the said rights, both from the point of view of sanctioning files and from the perspective of promotion of competition 1. 1 Report on collective management of intellectual property rights of 2009 and the Regulatory Proposal Report IPN 102/13 Draft Act for modification of the Redrafted Text of the Intellectual Property Act and of the Civil Procedure Act. 3

4 I. 2 Modification introduced in the Draft Act The CNMC has been informed of the inclusion in article 32 of the Draft Act, currently being processed in Parliament 2, of a new section which contemplates the non-renounceable right of editors and other holders of rights to receive a fair compensation for the fact that providers of services of aggregation of contents are making available to the public contents or non-significant fragments of contents in periodic publications or in web sites that are periodically updated with informative purposes, for the creation of public opinion or entertainment. This provision, in principle, should affect companies that aggregate contents 3, as well as press-clipping companies, which, should they reproduce contents of non-significant fragments of contents in their searches or summaries of contents, must, in an obligatory manner, compensate the editors. The new precept arises after some of the States of the European Union have proceeded to establish similar mechanisms to compensate editors or other holders of rights. In this regard, the reform of the German Federal Copyright Act 4, which obliges the acquisition of licences from German press editors to broadcast their informative contents and which only permits brief quotations without the need for licences 5 stands out. Along the same lines, in France, according to the recent agreement signed between the French Government and Google, this operator shall have to create a fund of 60 million euro to help the French press to speed-up the transition from analogic systems to digital ones. 6 2 A link to the text published in the Official Journal of Parliament is contained. The possible application of this to the Google News news browser is the most paradigmatic case and it gives the popular name Google tax to the amendment, but this is by no means the only one: 3_ _ next_page=/wc/servidorCGI&CMD=VERLST&BASE=IW10&FMT=INITXD SS.fmt&DOCS=11&DOCORDER=FIFO&OPDEF=ADJ&QUERY=%28121%2F000081*.NDOC. %29. 3 The aggregation of news in internet currently tends to be carried out by means of the following: i) internet portals (for example Google News, Huffington Post); ii) Readers of news sources (feed readers, in formats such as RSS, Atom, etc.) in web portals (for example Feedspot, News360, My Yahoo!), and; iii) Applications for readers of news sources such as Flipboard or Prismatic). 4 (in German). 5 The rule, in any case, has only affected large companies, and allows individuals, bloggers and associations to link and show contents without having to pay. Small aggregators of news have changed their practices in order to comply with the German law, but the majority of the editorial groups have authorized Google News to continue using their contents free-of-charge. 6 4

5 These initiatives are protected under articles 2 and 3 of Directive 2001/29/EC of the European Parliament and of the Council, of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society. Nevertheless, it is to be remembered that article 5.3 of the said Directive 7 enables the Member States to establish exceptions or limitations on the rights referred to in articles 2 and 3, specifically and among others, in the case of press articles being made available to the public in certain circumstances 8. The inclusion of this section in the Draft Act took place after the Spanish Authority on Competition had approved and published the alreadymentioned Regulatory Proposal Report IPN 102/13 relating to the Draft Act of modification of the Redrafted Text of the Intellectual Property Act and of the Civil Procedure Act. In this regard, neither this authority, nor, in principle, any other consultative authorities of the General Administration of the State, have had the opportunity to make any pronouncements on this right to fair compensation regulated in article 32.2, as the introduction of the same took place subsequently to the version on which they informed. II. CONTENT Article 32.2 of the Draft Act modifying the Redrafted Text of the Intellectual Property Act, approved by Royal Legislative Decree 1/1996, of 12 April, and Civil Procedure Act 1/2000, of 7 January, which is currently being processed in Parliament, establishes the following: "[ ] 2. The making available to the public, by providers of electronic services of aggregation of contents, of non-significant fragments of contents divulged in periodic publications or in web sites that are periodically updated, with informative purposes, for the creation of public opinion or entertainment, shall not require authorization, without detriment to the right of the editor, or, where appropriate, of other holders of rights, to receive fair compensation. This right shall be non-renounceable and shall be enforced via the entities that manage intellectual property rights. In any case, the making available to the 7 At the time of approval of Directive 2001/29/EC in May 2001, the number of users of internet was approximately 460 million. In March 2014, the estimated number of 2900 million users was 630% higher. Source: 8 See article 5.3.c): reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible; 5

6 public by third parties of any images, photographic works or mere photographs divulged in periodic publications or in web sites which are periodically updated shall be subject to authorization. Without detriment to that established in the preceding paragraph, the making available to the public by service providers that facilitate instruments to search for isolated words included in the contents referred to in the preceding paragraph shall not be subject to authorization or fair compensation whenever such making available for the public takes place without any commercial purposes and is executed strictly as may prove to be essential in order to be able to offer search results to consultation previously made by users via the browser and provided that the making available to the public includes a link to the page of origin of the contents. III. VALUATION The measure generates diverse impacts on the conditions of effective competition and efficient economic regulation, which may not be contemplated without taking into account, simultaneously, certain principles in the area of intellectual property rights and the accelerated innovative nature of information technologies: III. 1. Competition between original pages and providers of services of aggregation of news and press-clipping companies The main reason indicated to justify "fair compensation is the direct competition 9 that may take place between the original site and the providers of services of aggregation of news, or, where appropriate, press-clipping companies, in access to given information without sharing the costs that this creative effort entails. However, certain elements exist which may, simultaneously, question: i) the existence of the said direct competition; ii) the need for any compensation to exist, and; iii) the direction which, where appropriate, this compensation may take in the market. Firstly, one possible theoretical motivation for the economic compensation analysed may be based on the existence of a positive external effect in the edition of contents which may not be sufficiently compensated in the market. Under this theory, aggregators would be taking benefit from the creative effort of the original editors without compensating this in an appropriate 9 As recent references to economic literature, one may cite the study of M. Calin, C. Dellarocas, E. Palme and J. Sutanto, of 16 February 2013, entitled Attention Allocation in Information-Rich Environments: The Case of News Aggregators, as well as that of C. Dellarocas, Z. Katona and W. Rand, of 30 September 2010, entitled Media, Aggregators and the Link Economy: Strategic Hyperlink Formation in Content Networks. 6

7 manner, with the resultant production of a lower global volume of contents than that which would be socially desirable, causing damage to the general interest. This argument could not be accepted as there are simple, free, technical solutions that would prevent this external circumstances from arising, should the editor so desire, with reservation for the title-holder of the intellectual property of the possibility of the aggregation taking place or not. For example, with the standardized file robots.txt, each proprietor of a web page may prevent or delimit, easily and at no cost, tracing by any browsers and news aggregators 10 or all of these, with the level of detail which may be desired. To the extent that editors do not introduce the simple measures in their pages which may impede the aggregation of news, there may be circumstantial evidence of interest by the said editors for these activities not to be discontinued, implicitly showing that they consider them to be favourable for their individual interests. In summary, without showing the existence of a fault in the market, competition between companies and contractual intent between parties would be capable of producing efficient results in this market 11, due to which it would prove to be unnecessary and disproportionate to arbitrate any other economic compensation systems, which may be more costly and which may distort competition, and which may in no case be more efficient 12. Secondly, it is also questionable that all editors may consider news aggregators to be direct competitors, given that the original media may gain visits to their pages via the aggregation, since access to the full content requires accessing the page of the editor. In this regard, in addition to the non-utilization of the robots.txt file, the substantial investments by diverse editors of contents in improving positioning in browsers may be further circumstantial evidence that, at least for some editors, aggregators are supplementary and not competitors of their products or services. Neither is it justified, on this occasion, that competition and contractual intention between parties may lead to inefficient results in this market. As a result, it would prove to be unnecessary and disproportionate for the public sector to introduce ad hoc mechanisms for the distribution of income caused by this increased traffic. 10 All web sites may configure a standard for exclusion of robots (robots.txt file) which impedes tracing by browsers and appearance in their results. 11 With the additional safeguards of the possibility of applying ex post articles 1, 2 and 3 of Act 15/2007, of 3 July, on the Defence of Competition. 12 See Arrow, K. J.; Debreu, G. (1954). "Existence of an equilibrium for a competitive economy". Econometrica 22 (3): and McKenzie, Lionel W. (1959). "On the Existence of General Equilibrium for a Competitive Economy". Econometrica 27 (1):

8 Thirdly, even supposing that compensation should exist, it would be inefficient to determine, a priori and in a generalized manner, both the quantity and the direction in which payments must be made between generators of contents and news aggregators. In this regard, an aprioristic and generalized rule would be counter-productive, as the interests of news editors themselves may be diverse, not only in relation to other editors, but also with them being likely to evolve over time in one same company, taking into account the novelty of their web page, their reputation, the knowledge of users, their commercial policy, etc. Fourthly, traffic obtained thanks to aggregation generates, or may generate, other income different from subscription, mainly from advertising. No faults are observed in the market which may allow for it to be considered that the market may not be an efficient mechanism for the distribution between private companies of additional income from advertising which may be obtained from appearing in the said search engines or aggregators in this case, either. As a result, no motivation due to which the public sector may have to force mechanisms to determine the said economic obligations outside the market are observed, either. Finally, the Authority on Competition has record of the existence of editors that consider, without any ambiguity, that aggregation is beneficial for their interests, or otherwise that their distribution licences contemplate the absence of economic compensation, due to which, in addition to the arguments given in the preceding paragraphs, the "fair compensation" should never be contemplated with a non-renounceable character. III. 2. Competition between news aggregation service providers Given that article 32.2 would oblige electronic content aggregation service providers to pay a fair compensation to the editor and to other holders of rights, the measure would cause discriminatory detriment to the entry of new operators into this market. The new compensation would construct a barrier to access that current, incumbent aggregators that are already consolidated have not had to face. In this regard, it is necessary to take into account that the operators already present in the market have been operating in recent years without the need to pay the said "fair compensation", with this circumstance having allowed them to develop and become consolidated as from their initial moments without having to face the costs which new operators would indeed have to face. In addition to this, new operators may not have the financial capacity that those operators that have been acting in the news aggregation market for some time do indeed have. 8

9 Without knowing the concrete form 13 that the fair compensation contemplated in the Draft Act may take, it proves to be difficult to assess the static and dynamic effects of this measure on the entry of new operators and innovation in the market. Nevertheless, logically, the impact would prove to be more intense the higher the amounts to be paid may be. The said impact would, in all certainty, entail detriment for consumers in the form of lower competitive tension, a lesser variety of offerers and of technological innovations. The existence of a "fair compensation" would discourage access to the market for new electronic aggregation service providers, even more so the higher the value of the same may be. The possibility of the fair compensation being demanded exclusively from large operators and not from new entries or operators with reduced dimensions could prevent the said barrier to access but it would be difficult to defend from the point of view of nondiscrimination. In addition, the possibility exists that large, already-consolidated news aggregators may require the explicit consent of news editors in the robots.txt file in order to be indexed in their aggregation service. Both should the said express consent be sufficient for indexing and should compensation be demanded by the editor from the aggregator, additionally, on free accord between the parties, this situation would confer an additional, nonreplicable, advantage to consolidated operators in the aggregation of nonrepresentative news extracts. The said hypothetical situation would: i) lead to this modification of the legal text obtaining contrary results to those intended, and; ii) additionally, render the possibilities of new operators to access the market, with new and potentially better services, more difficult. III. 3. Reserve of activity privileging entities that manage intellectual property rights Finally, the Draft Act obliges for the fair compensation to be paid via entities that manage intellectual property rights. This provision would, in principle, suppose the existence of a reserve of activity for these entities, with the motivations due to which it is not permitted for these rights and compensations to be managed by other types of entities or by the holders of the rights themselves, not being known. 13 It would prove to be complicated to delimit the base of income on which the compensation is to be applied, given that, in most cases, these activities of content aggregation do not have any income directly associated, with a resultant risk of discretionality in the determination of the said base therefore arising. 9

10 The Authority for Competition considers that a regulatory model more favourable for competition is possible 14, in which the entities may face increased competitive pressure, in such a manner that the barriers for entry by new operators may be removed, which would increase incentives for entities to render services in an efficient manner and would reduce the possibilities of them exercising their market authority in the area of tariffs. In this regard, other entities could exist, such as press associations or editor associations, which could compete with the entities contemplated in the Draft Act for the management of the rights of editors and other holders of rights and the payment of the fair compensation. IV. CONCLUSION Without detriment to the preliminary nature of the analysis performed and of the need, where appropriate, to assess the development of the regulation proposed, also taking into account the impossibility of the CNMC itself making an appropriate pronouncement on this measure as it is not contained in the Draft Act remitted for report, given the potential effects on competition and efficient economic regulation stated previously, a new approach for the figure projected is recommended which may enable an in-depth analysis by the authority proposing the regulation which may reduce the possible negative impacts of the regulation. Nevertheless, should it be decided for the measure to be continued with, the following is recommended, at least: i) to modify the non-renounceable character of the compensation, and; ii) to eliminate the reserve of activity conferred to the entities that manage intellectual property rights. 14 As was included in the report of 2009; in order to introduce competition, it is necessary to opt for the liberty of management, that is, for all holders of rights to have more contractual freedom in relation to the mandate given to the management entity, and more freedom to choose who manages their rights, and under which legal form. In turn, it proves to be essential to eradicate the administrative interventionism that may have represented an obstacle during all these years or impeded the mechanisms of the market from operating when organizing the collective management of intellectual property rights. 10

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