German “Ancillary Copyright” Law To Go Into Effect, Imposes Limits On Search Results

According to a report from IDG News, a “toned down” version of an earlier, more restrictive “ancillary copyright” law has been published in Germany and will go into effect in August.

The ”ancillary copyright” rule was proposed in August of 2012. In its initial form it would have required Google and others that indexed or aggregated news to pay for links or excerpts from those news items — essentially a “link tax.”

The law was pushed by German magazine and newspaper publishers who see the internet and Google in particular as the cause of many of their subscription, readership and revenue challenges.

The original law did pass the German parliament but a compromise was later negotiated to allow search engines and news aggregators to display “single words or very small text excerpts” at no cost. Anything beyond this would be subject to the publishers’ “exclusive right to commercialize” their content.

There is no “fair use doctrine” in Germany. Fair use is effectively what allows Google to exist and withstand copyright claims in the US.

Using this law as its basis, German publishers hope to establish a licensing marketplace for their content. When the law initially passed the European Publishers Council issued a statement saying the following:

The European Publishers Council (EPC) welcomes today’s decision by the German Bundestag to approve an ancillary copyright for news publishers in law that means that search engines and other aggregators who commercialise publishers’ content will no longer be able to do so without permission. The “Leistungsschutzrecht,” as it is know in German, will pave the way for commercial negotiations between the parties on the price for the commercial use of publishers’ content . . .
The new law will only apply to those companies who exploit commercially third party content such as content aggregators and search engines. The proposed provision signifies no change at all to possible uses by other users, or for consumers, bloggers or companies and associations who may use links or cite passages of published content.

News publishers can now demand that search engines and other providers of such services that aggregate their content, refrain from unauthorised forms of usage. These companies will need licences for such usage in the future.

The EPC believes that this law will help establish a market for aggregator content. New innovative business models can now be built based on legally licensed content.

While search engines and news aggregators in Germany will be able to show some third party news content (“single words” and modest “text excerpts”) there hasn’t been any precise definition of how many words can be shown: a fragment? a sentence? more than a sentence?

As the statement above indicates German publishers contend that even in its diluted form, the new law gives them near total control over their content. We can probably therefore assume there will be some initial litigation or attempted enforcement action by publishers to compel the narrowest possible interpretation of “text excerpts.”