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Leistungsschutzrecht for German Print Media
An Ancillary Copyright Protection</3>
First published March 25, 2013
Von Felix Gebhard *
In 2012, the ruling coalition of the German government proposed legislation that incorporated a so-called ancillary copyright for print media. The executive submitted the bill to the parliament, Bundestag, in November 2012 where it was passed on March 1, 2013 after substantial amendments made the week before the vote. On March 22, 2013 the bill passed the second chamber of the parliament, Bundesrat, and will become law as soon as President Joachim Gauck signs it.
Objectives and Background
The intended effect of the bill was, at least in its initial draft, to require search engine providers, in particular Google, to pay license fees to publishers for displaying search results and excerpts of news stories. The newly created §§ 87f and 87g UrhG1 would give the print media the exclusive right to publish content publicly for one year and, therefore, prevent search engines and other news aggregators from linking to the publisher's website, unless they pay the required license fees.
The German Federal Copyright Code, Urheberrechtsgesetz (UrhG), already provides for comparable related rights in favor of other protected objects such as performing artists (§ 73 UrhG), producers of sound carriers (§ 85 UrhG), broadcasters (§ 87 UrhG) or producers of databases (§ 87b UrhG). The German Federal Association of Newspaper Publishers found itself placed in a worse position in the online field than other disseminators of protected works. Therefore, it lobbied for a legal vehicle that would defend press publishers against the unpaid use of their works on the internet through such a related right.
The Federal Government states in its draft of a seventh revision of the Copyright Act that the amendments intend to improve the protection of press products on the internet. It therefore argued that a general newly emerging need of such protection exists due to the new and coming possibilities that result from the digital revolution, social media and web 2.0. Publishers would increasingly find themselves faced with circumstances in which others would systematically access their work for the sake of their own profit. The legislature would be called to re-establish the balance between economic interests of news publishers, on the one hand, and commercial content-providers on the other.2
The Existing Situation
The existing legal situation basically already addresses the mentioned circumstances, given that textual quotes used as links are works according to the Copyright Act. However, the prevailing opinion among legal experts is that copyright should not protect in such instances, because the use of hyperlinks with a minimal description of the linked content would be mostly impossible.3 That opinion corresponds to the basic principle of what is known as the Fair Use doctrine in United States copyright law, which is a limitation and exception of the exclusive right granted by copyright law permitting limited use of copyrighted content for certain purposes such as research, teaching, news reporting, as well as search engines.
The highest German court for civil matters, BGH, reached the same conclusion in several decisions, emphasizing that there is a general public need for such information.4 The court also held that any copyright owner who publishes content publicly on the internet without technical protection agrees implicitly to use by search engines, such as Google's image search.5
Criticism Leveled Against the Bill
The draft legislation is criticized for a lack of practical relevance. From an economic point of view, exclusive rights are only necessary if otherwise worthwhile investments would not be made, because third parties would most benefit from it, not actual investors.
In the present case, the constellation is different. Google does not compromise the press publishers' opportunities to release press products on the internet. If anything, it increases the likelihood of users finding those products.6 Search engines do not reduce the traffic of publishers' websites; they produce and increase it. The established daily newspaper Süddeutsche Zeitung admitted that Google directs 25 percent of its visitors to their website; Google News 7 percent.7 Numbers for smaller press houses are likely significantly higher.
Another failing argument is that search engine providers take advantage of the publishers' investments without any effort of their own. Search firms make huge efforts both financially and technically for maintaining and improving their services. A useful functionality of internet research can only be provided through collaboration and synergy of both services. In other words, without any content, search engines could not find anything. Conversely, without search engines, hardly any content would be found due to the enormous quantity of information provided online.8
Critics also hold that the bill limits freedom of speech and the diversity of information, protected by Art. 5 of the German Constitution, Grundgesetz.9 The decreasing use of snippets through search engines and blogs - that are essential for any effective internet research - will affect the public right of information, the constitutionally protected öffentliches Informationsinteresse. The legislation also jeopardizes the authors' interests. Selectively differentiating between the press product, Presseerzeugnis, as protected subject matter of the bill and the copyright protected works it contains, such as the article's text and pictures, is nearly impossible. Authors who are generally interested in a wide-spread circulation of their articles, might have different interests than the publisher. In the worst case scenario, this could lead to indirect censorship within the press houses. To address such concerns, § 87g (3) UrhG contains a rule that intends to protect the author by stating:
The right of the news publisher may not be asserted to the detriment of the author or of any party entitled to copyright protection whose work or object of protection under this Act is contained in the news material.
In the end, this provision would be of little avail to the authors because it contains only a general suggestion but does not confer upon the author a legal interest.
Changes in the Amendments
Following such challenges, the draft was substantially changed and the Parliament finally passed a much weaker version of the bill. It provides that news aggregators may display single words or very small text excerpts from publishers' websites free of charge. However, the bill does not contain a definition of what constitutes a small excerpt. This modification does not solve the problems at hand, but results in a lack of clarity that will lead to a period of legal uncertainty, lasting until the BGH or at least certain circuit courts enhance the words with specific definitions.
The same concern applies to the vague definitions of the terms press publisher and press product in § 87f UrhG. Will blogs be considered press products? A similar uncertainty exists concerning the issue whether only search engines should be affected or social media networks like Facebook or Twitter, as well. What about user-generated content?
Impact on Business
Will the German print media actually enforce their new right to prevent search engines from linking to their websites? They depend on links if they want their products to be found and read by the public. This becomes apparent in the fact that even though preventing Google and other search engines from indexing a website and linking to it is technically easy, hardly anybody and in particular not publishers make use of that option. The internet's currency is traffic, and traffic is generated in large part by search engines.
One would conclude that the publishers' lobby seeks a right to additional revenue through internet licenses so as to benefit from the success and the turnover generated by search engines. The expectation is that Google and other search engine operators would not want to tie their fortunes to the good intentions of press houses. Publishers could grant free licenses or even waivers that release and discharge search engines from any liability, thereby increasing bureaucracy and administrative burden. Or they could simply not enforce their claims, which would render this legislation obsolete. In that case, search engines would likely avoid dealing with the risk of publishers holding them liable at any moment, and simply irgnore their content.
Most affected by the bill would be smaller providers, start-ups, bloggers and new internet and social media concepts. In the face of uncertainty, they will rather not make use of snippets and links or even not become active in the German market, just like Google introduced its new image search everywhere but in Germany.
Notes
1 Draft of a seventh revision of the Copyright Act of the Federal Republic of Germany.
2 Draft of a seventh revision of the Copyright Act, page 5 (Reasoning, A. II.).
3 Statement by the Max-Planck-Institute for Intellectual Property and Competition Law.
4 BGH GRUR 2003, 958, 962--Paperboy; BGH GRUR 2010, 628, 632 -- Thumbnails I; BGH GRUR 2012, 602, 604 -- Thumbnails II.
5 BGH GRUR 2010, 628, 632--Thumbnails I.
6 BGH GRUR 2003, 958, 962--Paperboy.
7 Süddeutsche Online, March 1, 2013.
8 BGH GRUR 2003, 958, 963--Paperboy.
9 Statement by the Max-Planck-Institute for Intellectual Property and Competition Law.
* Felix Gebhard studied law at the Ludwig-Maximilians-Universität, Munich, Germany and the Universidad de León, Spain. After completing his clerkship in the courts of Munich, the Munich city government and with the BPM Legal lawfirm in Munich, he serves presently as an international lawyer-intern with Berliner, Corcoran & Rowe LLP in Washington, D.C. The author thanks Clemens Kochinke for his help and valuable suggestions.
Cite as: Gebhard, Leistungsschutzrecht for German Print Media--An Ancillary Copyright Protection, 22 German American Law Journal (25 March 2013), http://www.amrecht.com/gebhard-leistungsschutz-2013.shtml.
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