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The Effect of Failure to Notify the Spanish and German Ancillary Copyright Laws

European Intellectual Property Review, issue 5, April 2015 Forthcoming

9 Pages Posted: 1 Feb 2015  

Bo Vesterdorf

Herbert Smith Freehills

Date Written: January 29, 2015

Abstract

A letter was recently made public, from the European Commission to the ProInternet Coalition in Spain, indicating that the Spanish Government has failed to notify to the Commission a controversial new law on ancillary copyright. This letter draws attention to a little-known requirement under EU law requiring governments to notify “technical regulations” under European Directive 98/34/EC, to allow the European Commission to assess their impact on the internal market. The Spanish “ancillary copyright” law, for instance, requires online news aggregators to remunerate news publishers for showing excerpts of content published on their pages, creating barriers to entry for new aggregators. Collection of the remuneration is entrusted to a single collection agency, and publishers are not allowed to waive their right. As a result, Google has withdrawn its news page from Spain, publishers there are deprived of the traffic that Google’s Spanish news page sent to them, and consumers are deprived of useful overviews allowing them to select Spanish news content that responds to their interests. The article examines whether this law constitutes a “technical regulation” required to be notified under European Directive 98/34/EC and the effects of a failure to notify. It concludes that the notification requirement is important to avoid fragmentation of the internal market.

Suggested Citation

Vesterdorf, Bo, The Effect of Failure to Notify the Spanish and German Ancillary Copyright Laws (January 29, 2015). European Intellectual Property Review, issue 5, April 2015 Forthcoming. Available at SSRN: https://ssrn.com/abstract=2558029

Bo Vesterdorf (Contact Author)

Herbert Smith Freehills ( email )

101 Collins Street
Melbourne, 3000
Australia

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