Legislation proposed by the German government would create a new type of copyright requiring any online or offline use of publishers' content to be compensated. Cue debate.

Mathew J. Schwartz, Contributor

August 21, 2012

4 Min Read

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Are search engines and other news-aggregation services covered by fair-use legal concepts, allowing them to return news headlines, summaries, or thumbnails of related images to people surfing the Web? Or should news aggregation sites, which so often sell advertising that surrounds news snippets, share their advertising revenue with publishers, thus helping to keep online media outlets healthy?

More than a decade after the launch of Google, and years after the company signed content-usage agreements with Agence France-Presse, Associated Press, and Belgian newspaper group Copiepresse to settle--or avert--lawsuits relating to its use of headlines, story summaries, and images, many people might think that such questions had been long settled. But in fact, related debates continue.

One of the most recent challenges to the use of news content comes from the German government, which earlier this year announced that it would be introducing legislation to create a new type of copyright that would require sites such as Google to pay a fee to publishers for any content--even small snippets--that they provide via their site. The fees would be collected by a new clearinghouse, then distributed to publishers.

[ Read Google Plans Button To Block Ads. ]

As noted by The New York Times, however, Google doesn't place advertising on its German news aggregation pages.

Regardless, the first draft amendment of the German legislation, introduced in June, would require any use of publishers' material--either in the online or offline realm--to be compensated. "The example that was given at the hearing was: a bank employee reads his morning newspaper online and sees something about the steel industry, and then advises his clients to invest in certain markets," Mathias Schindler, who helped found Wikimedia Deutschland, told Al Jazeera.

"The publishers argued that the bank consultant was only able to advise his clients because of the journalistic work in the published article," said Schindler, who's been attending recent government hearings into the proposed copyright amendments. "So that means the publisher deserves a fair share of any money made from that scenario. This was the proposal from the start."

A recent revision to the draft legislation, meanwhile, curtailed the scope of the copyright proposal, but the proposal remains under discussion--and the subject of ongoing government hearings.

In March, the Federation of German Newspaper Publishers applauded the proposed legislation. "In the digital age, such a right is essential to protect the joint efforts of journalists and publishers," it said in a statement, noting that such revenues were "an essential measure for the maintenance of an independent, privately financed news media."

But Google argues otherwise. "We don't have any sympathy for these plans, as an ancillary copyright lacks all factual, economic, and legal foundation," said a Google spokesman via email. "And we are not alone with this opinion: The Federation of German Industries (BDI) and 28 other associations vehemently oppose an ancillary copyright for publishers. The German parliament is divided on the issue as well. For a good reason: An ancillary copyright would mean a massive damage to the German economy. It's a threat to the freedom of information. And it would leave Germany behind internationally as a place for business."

"Publishers should be innovative in order to be successful," said the Google spokesman. "A compulsory levy for commercial Internet users means cross-subsidizing publishers through other industries. This is not a sustainable solution."

Critics of the proposed legislation also have warned that rather than agreeing to the German copyright demands--and creating a precedent that publishers in other countries might seek to emulate--companies such as Google might simply cease doing business in the country.

Writing last year in Computer Law & Security Review, Till Kreutzer, a copyright expert at the Bureau for Information Law Expertise in Germany, warned that the expansion of copyright sought by publishers--for which they've been lobbying since 2009--had the potential to cause "collateral damage to fundamental freedoms like the freedom of the press, the freedom of expression, the freedom of science and education as well as the communication and publication practices on the Web."

Furthermore, would the new form of copyright even be enforceable, especially when dealing with websites not run by established businesses, or which operate outside Germany's borders? "Could every blog register with the collecting society that is to be founded?" said Thierry Chervel, co-founder of German cultural website Perlentaucher, reported The New York Times. "If so, wouldn't the financial benefit from the ancillary copyright be rather meager for the newspapers?"

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About the Author(s)

Mathew J. Schwartz


Mathew Schwartz served as the InformationWeek information security reporter from 2010 until mid-2014.

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