25. June 2013
Germany’s controversial ancillary copyright legislation (Leistungsschutzgesetz) will come into effect on 1 August 2013. The legislation is designed to protect press publishers’ intellectual property rights. However, the new laws could have far-reaching consequences for all internet users.
Amendments to German copyright law
Under the modifications to German copyright law, search engines such as Google and other content aggregators will have to obtain permission from publishers and may have to pay a fee to display press content in search engine results.
Last minute attempts to water down the legislation were successful and it is now permissible to display short snippets of text in search results.
Legal questions about the ancillary copyright rules
Despite restricting the scope of the legislation to “longer texts”, questions remain as to what the precise purpose of the legislation is? Which excerpts of text can still be used on the internet for free? Who is affected by the new ancillary copyright measures?
The purpose of the ancillary copyright legislation
The aim of the new ancillary copyright legislation is to protect online news publishers’ commercial efforts with similar intellectual property rights to those which are already enjoyed by music producers, film producers and broadcasters.
The rules provide that press publications, or parts of them, can only be made publicly available with the express prior consent of the publishers.
Commercial search engine operators or other similar services wishing to display snippets of text from online press articles in search engine results will be required to pay a fee to the publishers for doing so.
News aggregators, which automatically collect news or articles from other websites, will also be caught by the legislation.
Publishers will therefore be able to benefit from the revenue generated as a result of these services using their content.
Scope of the ancillary copyright legislation
The concept of ancillary copyright legislation for online publishers was problematic from its inception.
To offer effective search results and links, search engines and content aggregators, have to be able to display the content to which the search result refers in some form. It is therefore practically essential to display, at the very least, small snippets of text from online content in search results.
In recognising this necessity, the legislative proposal was amended only days before it was agreed to by German parliament.
Under § 87f sub-paragraph 1 of the amended Copyright Act “individual words or the shortest excerpts of text” are exempt from the legislation and will continue to be freely reproducible.
This means that clean URLs or headlines, such as “Bayern beats Schalke” can still be used for free.
Which snippets of text can be used for free?
Despite the ancillary copyright legislation being watered down, it still remains unclear what length snippets may be before a fee should is paid for their use. The legislation does not prescribe a set number of words or characters which may be freely displayed.
Legal debate has already begun as to whether snippets as they are displayed by search engines in their current form would be exempt from the legislation.
The rationale accompanying the legislation does little to stem the debate.
It refers to the case law of Germany’s Federal Supreme Court which generally permits the use of texts which are made freely available. However, this position is often seen as an exception to the typical use of snippets made by search engine operators which has developed over the years.
Others explicitly rely on the wording of the rationale to argue that the use of headlines is expressly referred to and as a result snippets are inherently too long and therefore not exempt from the scope of the legislation.
It can be seen that this fundamental point is causing some confusion.
Who will the ancillary copyright rules apply to?
There is also uncertainty as to who would be caught by the obligation to pay a fee under the ancillary copyright rules.
As the use of publications in search engine results is the crux of the legislation, there is no doubt that search engine operators will subject to the so-called “lex Google”. Also news and content aggregators will be affected by the legislation.
As a result some operators such as riwa.de and filtr.de announced that once the legislation comes into force they will either display only very short excerpts of text, or will only display content from those press publishers which expressly agree to forego ancillary copyright protection.
Contrary to a widely held fear expressed during negotiations on the legislation, bloggers and users of social media sites such as Facebook and Twitter will not have to pay any fees under the legislation. This is because the rules capture only search engines and other services which reproduce content automatically. As bloggers and social media users exchange links and text which they personally select, they are exempt from the legislation.
On the other hand, internet services which specialise in the automatic exploitation of online content see themselves confronted by legal uncertainty. RSS feeds or translation websites such as the Cologne-based start-up linguee.de, which uses excerpts of text to contextualise suggested translations, may be affected by the new rules. Although their services do not intentionally reproduce press content, the possibility of this occurring cannot be wholly excluded. As a result, these businesses could risk having to pay for breaching German copyright law.
Leaving aside the debate about the fundamental principles of the ancillary copyright legislation, it appears that the implementation of the rules will leave much to be desired. The room for interpretation as to the permissible length of free snippets and which businesses and services will be subject to the legislation will give many a feeling of unease.
This uncertainty may not be restricted to online services, but could also affect every day internet users in as far as less or severely restricted content being available.
It seems that the uncertainty in the wording of the ancillary copyright legislation will eventually need to be clarified by the courts. It therefore remains to be seen this area of law will develop.
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