Is it fair that Google News makes millions in revenue by providing other people’s data while the press publishers have to fight for their very existence in the digital age? One answer is offered by the motive behind the draft of the new ancillary copyright law (Leistungsschutzgesetz) – an absurd testimony to traditional desperation in the digital age.
Is it fair that Google News makes millions in revenue by providing other people’s data while the press publishers have to fight for their very existence in the digital age? One answer is offered by the motive behind the draft of the new ancillary copyright law (Leistungsschutzgesetz) – an absurd testimony to traditional desperation in the digital age.
“The publisher has no right of his own to protect what he has created.” A quote from the YouTube video “Pro-Leistungsschutzrecht”. It goes on to say that the reputation of a press article depends on the publisher’s brand. The “brand is the achievement and passion of the publishers.” It could hardly be put more plainly. The ancillary copyright law put to the vote in the Bundestag, which is getting tempers up everywhere, is a product of the publishers’ lobby. In its YouTube video the lobby has made its general view of the role of journalism clear: this is not about forming public opinion, it is about business. That is why the content of the draft bill is yet another example of the state being talked into regulatory intervention by private businesses. So what is at stake is the protection of commercial output – analogous to the Act against Unfair Competition (UWG).
First of all: the ancillary copyright law is not primarily aimed at bloggers – even if their outcry is currently the loudest thing echoing through the internet. In a sense, a lance is to be broken for quality journalism, the kind that takes work. Automatically generating other people’s content and then earning money on that basis is not fair. At least, it is the intention of the draft to put a stop to the so-called news aggregators, such as Google News. Their content is precisely that collection of, and linking to, press articles which users consume on desktops, tablets and mobile devices. Google undoubtedly makes heaps of money from it – after all, the company draws millions of users to its pages. On the one hand that increases its advertising revenue; on the other, Google makes a profit from the money of those who want to be found in the Google index – the publishers included. This makes the point of the ancillary copyright law questionable. The texts in the news readers consist of headlines and short introductory paragraphs. Anyone who wants to read an article is directed to the relevant (publisher’s) page. The draft ancillary copyright law is born of the ubiquitous erosion of traditional business models by digital media – in which the publishers are investing nonetheless. Is it, then, simply the desperation of institutions that the digital age has overtaken? The advocates of the ancillary copyright put it like this in their video: “Those who use the work of others without asking, in order to make money from it themselves, must pay. After all, if there is one thing we should remain on the internet too, it is this: fair.”
Should the ancillary copyright law be cast into binding law in its present form, it will cause nothing but confusion and legal uncertainty. For one thing, there will be no central collecting society like GEMA to set and monitor the principles according to which one becomes liable for infringing it. Every publisher will decide for itself when it considers its “ancillary copyrights” infringed. Furthermore, the question is whether the ancillary copyright law actually plugs legal loopholes, or whether it will turn out to be another showpiece of German overregulation.
The German Federal Bar (Bundesrechtsanwaltskammer) voices reservations about the draft bill in its expert opinion. It makes clear that “the community [undoubtedly] [has] a vital interest in high-quality journalism. This also includes effectively protecting the work of journalists and press companies against appropriation by third parties that cannot be legally condoned.” Between the lines of “no consistent system can be derived from the legislative decisions on individual ancillary rights” one might read that other ancillary rights, such as that of phonogram producers (§85 UrhG), sprang from lobbying in days gone by.
On the question of whether the ancillary copyright law fills gaps left by the Copyright Act (Urheberrechtsgesetz) – under which the use of other people’s works without permission is not allowed – it turns out that the only gap lies in extracts of journalistic texts, that is, in “the tiniest components”. Isn’t that covered by the freedom to quote under the Copyright Act? Indeed, the expert opinion sees both legal and practical concerns. On the practical side alone, it sees hardly any way even to track down the so-called “snippets”. Legally, it sees “in the area of journalistic work protected by copyright […] no need for the introduction of an ancillary copyright for the press”. Rather, the publishers’ “right to prohibit” resulting from the ancillary copyright would impair the citizens’ freedom of information. In essence, the law would override the freedom to quote under §51 UrhG. That could be done more simply by just deleting the section.
Under the Copyright Act it has always been forbidden to copy complete articles into one’s own blog – and the blogging community knows this. Supposedly, quoting and linking to press articles is still to be allowed if it is done non-commercially. This is where opinions part ways. Especially when it comes to the legal assessment of advertisements displayed on a private website. German courts will then have to assess whether the ancillary copyright law has been violated when a user from the far reaches of the internet lands on a blog because the author used the “stolen” headline of a press article in his text – and because a “Flattr” button (which allows micro-donations) is stuck on his page. So in its consequences the new law would hit the bloggers above all, and unpleasantly.
“The publishers are tripping themselves up”, says Handelsblatt, pointing out the absurdity of publishing houses sinking vast sums of money into search engine optimisation instead of barring the Google bots from automatic linking with “one line of code”. The actual problem would be solved, wouldn’t it? Let us look at the scenario from the other side, which makes the desperation of the traditional publishers plain: suppose Google took all links from – let’s say – the Springer publishing house out of its databases. Couldn’t Google suddenly demand money for Springer’s articles to appear in the world’s largest search engine again?
“The publisher has no right of his own to protect what he has created.” A quote from the YouTube video “Pro-Leistungsschutzrecht”. It goes on to say that the reputation of a press article depends on the publisher’s brand. The “brand is the achievement and passion of the publishers.” It could hardly be put more plainly. The ancillary copyright law put to the vote in the Bundestag, which is getting tempers up everywhere, is a product of the publishers’ lobby. In its YouTube video the lobby has made its general view of the role of journalism clear: this is not about forming public opinion, it is about business. That is why the content of the draft bill is yet another example of the state being talked into regulatory intervention by private businesses. So what is at stake is the protection of commercial output – analogous to the Act against Unfair Competition (UWG).
First of all: the ancillary copyright law is not primarily aimed at bloggers – even if their outcry is currently the loudest thing echoing through the internet. In a sense, a lance is to be broken for quality journalism, the kind that takes work. Automatically generating other people’s content and then earning money on that basis is not fair. At least, it is the intention of the draft to put a stop to the so-called news aggregators, such as Google News. Their content is precisely that collection of, and linking to, press articles which users consume on desktops, tablets and mobile devices. Google undoubtedly makes heaps of money from it – after all, the company draws millions of users to its pages. On the one hand that increases its advertising revenue; on the other, Google makes a profit from the money of those who want to be found in the Google index – the publishers included. This makes the point of the ancillary copyright law questionable. The texts in the news readers consist of headlines and short introductory paragraphs. Anyone who wants to read an article is directed to the relevant (publisher’s) page. The draft ancillary copyright law is born of the ubiquitous erosion of traditional business models by digital media – in which the publishers are investing nonetheless. Is it, then, simply the desperation of institutions that the digital age has overtaken? The advocates of the ancillary copyright put it like this in their video: “Those who use the work of others without asking, in order to make money from it themselves, must pay. After all, if there is one thing we should remain on the internet too, it is this: fair.”
Should the ancillary copyright law be cast into binding law in its present form, it will cause nothing but confusion and legal uncertainty. For one thing, there will be no central collecting society like GEMA to set and monitor the principles according to which one becomes liable for infringing it. Every publisher will decide for itself when it considers its “ancillary copyrights” infringed. Furthermore, the question is whether the ancillary copyright law actually plugs legal loopholes, or whether it will turn out to be another showpiece of German overregulation.
The German Federal Bar (Bundesrechtsanwaltskammer) voices reservations about the draft bill in its expert opinion. It makes clear that “the community [undoubtedly] [has] a vital interest in high-quality journalism. This also includes effectively protecting the work of journalists and press companies against appropriation by third parties that cannot be legally condoned.” Between the lines of “no consistent system can be derived from the legislative decisions on individual ancillary rights” one might read that other ancillary rights, such as that of phonogram producers (§85 UrhG), sprang from lobbying in days gone by.
On the question of whether the ancillary copyright law fills gaps left by the Copyright Act (Urheberrechtsgesetz) – under which the use of other people’s works without permission is not allowed – it turns out that the only gap lies in extracts of journalistic texts, that is, in “the tiniest components”. Isn’t that covered by the freedom to quote under the Copyright Act? Indeed, the expert opinion sees both legal and practical concerns. On the practical side alone, it sees hardly any way even to track down the so-called “snippets”. Legally, it sees “in the area of journalistic work protected by copyright […] no need for the introduction of an ancillary copyright for the press”. Rather, the publishers’ “right to prohibit” resulting from the ancillary copyright would impair the citizens’ freedom of information. In essence, the law would override the freedom to quote under §51 UrhG. That could be done more simply by just deleting the section.
Under the Copyright Act it has always been forbidden to copy complete articles into one’s own blog – and the blogging community knows this. Supposedly, quoting and linking to press articles is still to be allowed if it is done non-commercially. This is where opinions part ways. Especially when it comes to the legal assessment of advertisements displayed on a private website. German courts will then have to assess whether the ancillary copyright law has been violated when a user from the far reaches of the internet lands on a blog because the author used the “stolen” headline of a press article in his text – and because a “Flattr” button (which allows micro-donations) is stuck on his page. So in its consequences the new law would hit the bloggers above all, and unpleasantly.
“The publishers are tripping themselves up”, says Handelsblatt, pointing out the absurdity of publishing houses sinking vast sums of money into search engine optimisation instead of barring the Google bots from automatic linking with “one line of code”. The actual problem would be solved, wouldn’t it? Let us look at the scenario from the other side, which makes the desperation of the traditional publishers plain: suppose Google took all links from – let’s say – the Springer publishing house out of its databases. Couldn’t Google suddenly demand money for Springer’s articles to appear in the world’s largest search engine again?
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