Spain thinks that the internet doesn’t work for newspapers, and thinks it can solve that problem with legislation that would grant copyright holders an inalienable right to receive royalties from content aggregators. The bill has already passed the lower house of the Spanish legislature and is dangerously close to becoming law.
Here’s the problem: an inalienable right to payment might work for those authors who want to be paid, but it would be deeply problematic for those who place more importance on being read.
In general, copyright law has proven largely agnostic regarding the tension between the interests of those who want to make their works as widely available as possible (let’s call them “sharers”) and those who want to limit access in order to maintain profits (“sellers”). In general, sharers can use copyleft licensing to ensure that copyright is no barrier to distribution, while sellers can (at least in theory) enforce their copyrights against infringers.
But while copyleft licenses have worked admirably for sharers, enforcement efforts haven’t proven to be any sort of cure-all for sellers. Indeed, sometimes, as with news, infringement per se isn’t even perceived as the source of the problem. Instead, noninfringing linking has attracted the ire of many rightsholders, particularly where, as with news, headlines and snippets (the argument goes) might satisfy a user’s curiosity on a given subject.
So called “Google Taxes” have been variously proposed and adopted in a number of jurisdictions to make these aggregators pay royalties to the rightsholders to which they link. There are reasons to be dubious of this move wherever it’s implemented, but let’s set those aside for now. Superficially, aggregator taxes work toward solving problems for sellers at the expense of internet intermediaries. While we should be concerned about the effects on intermediaries , from a sharer’s perspective they don’t necessarily pose much of a direct problem.
The Spanish approach isn’t just for sellers though. By making the right to a royalty inalienable, it disallows sharers from granting aggregators the right to link to their work royalty-free. It’s a hatchet in the back of copyleft licensing, undercutting the internet’s effectiveness at furthering the interests of sharers in order to shield sellers.
Advocates for the scheme will protest that some measure of inalienability is necessary, otherwise it will prove as ineffective as the approach in Germany, which ultimately resulted in newspapers renouncing their right to be compensated in order to avoid being shutout from aggregation.
All of which suggests that the discoverability fostered by indexing and aggregation is worth far more to sellers than they claim—almost certainly a net benefit rather than a net drain.
So if aggregation isn’t really what’s hurting the news industry, why “tax” it? Especially when the result is a disservice to authors who write primarily to be read?
There isn’t a satisfactory answer unless you’re likely to be persuaded by yet another iteration on “if value, then right.” With real harms and dubious benefits, we can only hope that the Spanish Senate opts to nip this particular legal innovation in the bud.
 Note that there is another problem here: large internet companies rarely have physical presences in most countries, but might nonetheless do substantial digital business across borders. The question of how and where such businesses should be taxed is an important public policy issue and the source of much frustration around the word. However, the general taxation question, which is also often called a “Google Tax,” is a little off topic here.
 Most importantly, there’s obvious benefit to indexing and aggregation so steps that would discourage it should not be taken likely. It’s also important to remember that not all aggregators have the resources of, say, Google, so mandatory payment schemes might counterintuitively serve to protect incumbents from competitors.