While many European news publishers have fought search engines and news aggregators over copyrights, Germany’s proposed “ancillary copyright law” may actually allow them to charge companies like Google for reproducing their content.
The modified version of the law introduced by Chancellor Angela Merkel’s government in 2012 would still allow Google and others to use brief excerpts and links for free.
After passing in the Bundestag, the lower chamber of the German Parliament, this law will still need a vote from the Bundesrat, the parliament’s upper chamber, before it goes into effect.
But what will really happen if it passes? We asked Andowah Newton, a litigation associate at Mintz Levin in New York City, to walk us through the possibilites.
“Interested parties on both sides of the debate have declared the vote on Germany’s ‘ancillary copyright’ law as a ‘win’ for each of their respective sides,” Newton said. “Both declarations are correct. On the one hand, search engines and news aggregators would ‘win’ by maintaining the right to use snippets of publishers’ news content without having to pay the publishers a fee. On the other hand, publishers would ‘win’ by having their exclusive right to commercialize their news content (aside from the snippets) declared and validated by law.”
But even if it passes, enforcing a law like this may prove to be a challenge, as the terms do not seem to clearly define how small the text excerpts should be.
“The burden will inevitably fall on publishers to monitor the search engines and news aggregators’ use of snippets to ensure that the publishers’ rights are not being violated under the proposed new law,” said Newton. “Since the law likely does not define it precisely enough for them, the publishers will have to determine what they consider to be the threshold level of improper use of snippets.”
Possible metrics for defining “improper use” could include the number of words, the particular words used, the number of lines, the percentage of the overall text used in the excerpt, or some combination of these criteria.
“From a litigation perspective,” said Newton, “to reduce their exposure to potential lawsuits based on the proposed law, search engines and news aggregators should consider developing clear policies regarding the scope of excerpts and ensure that they apply those policies consistently.”
Germany is not the first country in the European Union to bring these issues to court. Said Newton, “the German law represents a starkly different approach from those pursued in Belgium and France, where numerous litigations resulted in major settlements with news companies and governmental authorities in December and January, respectively.”
In Belgium, Google was forced to temporarily remove newspaper links and article excerpts from Google.com and Google.be when an appeals court in Brussels upheld a 2007 ruling that sided with the newspaper association Copiepresse. This was in 2011.
In December 2012, Google reached an agreement with the Belgian French-language publishers to restore the links and to partner with Belgian publishers on other business initiatives to generate more revenue. The biggest concern in that instance seemed to be Google News, where larger portions of text are shown than in the usual search results.
In France, Google chairman Eric Schmidt and French President Francois Hollande struck a 60 million-euro (or more than $78 million) deal to strengthen business ties in order to boost publishers’ profits on the search engine rather than paying for aggregated snippets or links.
The business deals mean could mean stronger ties with Google’s advertising offerings on the search engine and/or new options for paid subscriptions through Google Play.
In the future,”Search engines and news aggregators must anticipate that other EU-member countries may follow the lead of Germany’s government, and choose to resolve this issue through legislation rather than negotiating one-off settlements,” said Newton.
Likewise, “publishers in other EU-member countries will also have to re-analyze or, in some cases, develop their strategy regarding this issue,” Newton added. “For example, publishers in other EU-member countries may decide to use Germany’s new law as leverage in negotiating future settlements with search engines and news aggregators.”
Image by wwwebmeister.