Thursday, March 17, 2016

Continued desertification of the German internet - "ancillary copyright"

From our The German internet is a desert series.

A few years ago, Germany passed an "ancillary copyright" law (Leistungsschutzrecht) designed to enable rights holders to claim payment for the use of "snippets" of content from their web sites when these showed up in news aggregations or internet news sites.

All things digital site finally managed to get a couple of FOIA requests through, and now we have the machinations that went on in the making of the law.

If you are not interested in the law itself, we recommend the K-Landnews take on money for nothing in German gardener to sue beekeeper over pollen profits?

First, a quick overview of the law as it stands:
The nickname "Google law" illustrated that the law was not about ensuring "creative professionals" received a "fair share" for published work but a simple "money for nothing" scheme to get at some of Google's ad revenue.

Problems with the law were fully known before it passed:
1) Google and many other aggregators didn't show ads on aggregation sites, so there was no income from the aggregation itself.
2) The length of snippets was ill defined.
3) Publishers could opt out.
4) Aggregators could drop publishers.

Items 3 and 4 put together took care of the law. Even the most vociferous supporters quietly signed the "no revenue and we won't delist you" contracts with the big players, leaving some small aggregators in their crosshairs. The large publishers, like Bild or Burda, did not want to loose millions of search engine referrals each month for uncertain snippets revenue. Court challenges of the opt out model failed.

Although most legal experts have called for the law to be rescinded, it is still on the books.

What Netzpolitik found about the deliberation.
The main government officials working on the bill distorted the views of the "internet community", stating that the community wanted all copyrighted content to be free, gratis.

The main official fully supported the stance of the "Content Alliance" (composed of public TV, music rights enforcer GEMA, a publishing lobbyist (who took a government job soon after), a print publisher association. 

In a letter to Chancellor Merkel, published in full by Netzpolitik, the official goes out of his way to dissuade the Chancellor from meeting representatives of the "net community" before meeting members of the Content Alliance. He wrote that such a meeting would be "perceived with criticism" by the Content Alliance.

A minor problem: the meeting of the Chancellor with community representatives had already been scheduled.

His solution: The Chancellor should cancel her participation for "scheduling reasons", which would "easily pass as credible".

The documents published by Netzpolitik on the issue show without doubt that any public talk of "cooperation" and "inclusion" of the arguments of the net community was a smoke screen. The law was going ahead as planned and "suggested" by the Content Alliance.

[Update 6/28/2016] A court in the capital, Berlin, handed the association of publishers VGMedia a resounding defeat four months ago when the organization sued to force Google to pay for "snippets". The court stated that Google was acting in within the law by asking only VGMedia associated publishers for a free license if they wanted to see their offering listed in the search engine's aggregated news. VGMedia is now changing its strategy by suing Google for alleged abuse of its market power in requiring a free license for snippets (Google has over 90% of search market share in Germany).
At the same time, the association is trying to push for an EU regulation to mandate German style "ancillary copyright" for all European Union countries.

[Update 12/8/2016] Based on an earlier European Court of Justice decision regarding potential liability for links to web pages, a superior court in Hamburg, Germany, decided a case in which the operator of a site was accused of having linked to a page which contained an image that was used by the destination (target) page without permission of the photographer.
The court held that the operator of the site setting the link was liable for copyright infringement. Website operators/authors who use a simple text link to another web page are thus liable, even if they do not know and can not determine whether the destination page infringes on any intellectual property rights.
Initial comments on the web say that this provision applies to "commercial sites". The court, however, uses a much vaguer term of "sites intending to gain financially".

The blogster is willing to bet one Susan B. Anthony dollar that having any ads on a site will be considered proof of this intention.

After all, this is Germany.

The blogster has, surprise, some personal experience with working on television series that ran in Germany. Royalties never made to the blogster. Members of the "Content Alliance" have a number of, let's say, interesting hurdles in place for "creative professionals" who do not work for the big publishers.

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