Prof. Javier Díaz Noci publishes paper 'Let's make them pay: A comparative legal study of the so-called 'Google tax' in Europe and Brazil sent to the Sixth International Conference on Online Journalism in Bilbao, devoted this year to the general topic of “Are audiences guarantors of quality?”. In his paper, on the enacting of the so-called 'Google tax' in several countries, including Spain in November 2014, Díaz Noci highlights how the legal reasoning of the ‘Google tax’ is provided by the concept of ancillary rights, and by the tax already enacted in Germany in 2013-2014.
Even though the reforms, in particular the German ones, are supposedly addressed to the economic interest of the authors, reality is more complicated. When the economic situation of the associative movements is not strong (and this is the case of Spain, although France seems to present a different scenario) the interest of companies prevails. Instead, those legal movements which follow the German model are intended to treat ‘exclusive rights as interdiction rights’, and interdiction as a way of making aggregators share their revenues.
But, at the same time, when it collides with the legal consideration of a link as a permitted, or even encouraged, activity, legal provisions can state nothing. Actually, the linking activity has received a jurisprudential recognition when in February 2014, the decision C-466/12 of the European Union’s Justice Court that the links are not to be considered an act of public communication. As such, it is not necessary, since there is no new public, to ask for permission from the authors of the linked works. So under this decision some of the national provisions will probably challenged in the constitutional courts and will probably be revised . This needs to be combined with the users’ rights and the natural - or at least presented as natural - promotion of access to the culture by the general public, which has been intensified by the popularization of the World Wide Web with its immediate one-click accessibility.
Similar strategic legal movements in several countries of Europe are playing out in different ways depending on the characteristics and the strength of the economic forces involved in each scenario. This leads to a considerable tension between the necessity of giving similar responses to similar – and global – problems and a legal fragmentation that makes it increasingly hard to maintain a consistent position when struggling with an enormous economic unit, like Google, which acts under a different cultural framework.