Ancillary copyright for press publishers

from Wikipedia, the free encyclopedia

The Ancillary copyright for press publishers is an intellectual property law in Germany. It serves to protect publishing services "against systematic access (...) by the providers of search engines and providers of such services in the network (...) who prepare content according to a search engine (...) (and thereby) for their own added value also on external publishing Services (access). ”The ancillary copyright law anchored in §§ 87f to 87h of the Copyright Act grants press publishers the exclusive right to make press products publicly available for commercial purposes, unless they are individual words or the smallest text excerpts.

The ancillary copyright law was introduced by the eighth law amending the copyright law of March 7, 2013 with effect from August 1, 2013. In a resolution accompanying the legislative resolution, the Federal Council expressed the expectation that a proposal to amend the law would be adopted after the 2013 Bundestag election, which would strengthen the possibilities of press publishers to enforce their rights, while safeguarding the interests of authors and guaranteeing the principle of freedom of information . After the federal election in 2013, the coalition parties agreed in their coalition agreement of December 16, 2013 to evaluate the ancillary copyright law with regard to the achievement of its goals.

In autumn 2014, five experts were finally invited to the Digital Agenda Committee in the German Bundestag to assess ancillary copyright law. In December 2014, all five experts came to the unanimous conclusion that the ancillary copyright law for press publishers should be abolished. The introduction was a "catastrophe". Other scientists also rated it at the same time as "half-baked, short of breath, lobby-driven" and also called for its abolition without replacement. In 2018, around 4 million citizens spoke out in a petition against a planned ancillary copyright at EU level.

On September 12, 2019, the ECJ ruled that German ancillary copyright law is not applicable because the German government had not submitted the draft to the EU Commission in advance. Laws that regulate information society services are subject to notification.

content

The ancillary copyright for press publishers was originally intended to ensure that even small clippings from newspaper articles are legally protected for one year from publication . These so-called snippets are usually shorter than three sentences and are often displayed in search results on the Internet together with the title and the URL . The publishers should be granted the exclusive right to make press products publicly available on the Internet for commercial purposes. The display of snippets in search results would then no longer have been permitted, unless another arrangement ( licensing ) had already been made with the publisher. The bill stipulated that the publishers would have to be paid an appropriate fee for displaying the snippets in search results.

At the end of February 2013, the Legal Committee of the German Bundestag changed the draft law in key points: Search engines should be allowed to use “individual words and the smallest text excerpts” without having to pay the publishers any fees. The reason given was that otherwise the fundamental right to information would have been restricted. Directed was also pointed out that the Federal Court had ruled in 2011 that Google " thumbnails " called thumbnails may show up in search results.

discussion

Ancillary copyrights already exist for some other subject matter in the Copyright Act . They are regulated in §§ 70 ff. UrhG . In a press release from the Federal Association of German Newspaper Publishers (BDZV) on May 7, 2009, the demand for ancillary copyright for press publishers was justified by the fact that "the press companies would have to defend themselves against the free use of their offers on the Internet". This demand was taken up in the coalition agreement. There it says in line 4776:

“In the online area, publishers should not be placed worse off than other work brokers. We are therefore striving to create an ancillary copyright for press publishers to improve the protection of press products on the Internet. "

In a speech at the BDZV newspaper congress in September 2011, Chancellor Angela Merkel said that ancillary copyright was being prepared:

“Publishing services cost time and money. That's why I can well understand that ancillary copyright is required for publishers. That is why the federal government is currently working on a draft law that will further adapt copyright law to the requirements of a modern information society. We haven't forgotten; it is being pushed. We strive for a balanced regulation that takes into account the legitimate interests of all parties involved. "

Merkel also announced that she would be promoting these efforts at the European level.

On March 5, 2012, the coalition committee of the federal government agreed to introduce an ancillary copyright law for press publishers as part of the third basket of copyright reform. The commercial use of press products on the Internet should be chargeable within a year, especially for search engine operators and news aggregators . A collecting society should collect and distribute the fees. It is still unclear where the line between commercial use and private use, which will continue to be free, should run.

On June 14, 2012 it became known that a draft law by the Federal Ministry of Justice on ancillary copyright law had been sent to ministries and lobby groups. This draft, which says that paragraphs 87f to 87h should be inserted into the copyright law, was also circulating on the Internet.

On August 29, 2012, the Federal Cabinet passed a modified draft law that is practically only geared towards search engines on the Internet and should no longer have any influence on all other possible users of press products.

A petition brought to the German Bundestag on August 16, 2012 by the pirate politician Bruno Kramm called for the ancillary copyright to be rejected. The subscription period ended on October 10, 2012. The quorum of 50,000 signatures was not reached.

On November 27, 2012, the Max Planck Institute for Intellectual Property and Competition Law issued a statement against the ancillary copyright law.

Arguments for an ancillary copyright

Preparer for an
ancillary copyright of the VDZ with an opponent of the law

For an ancillary copyright for press publishers, it is argued that there is a protection gap , since other exploiters such as sound carrier manufacturers already have ancillary copyright . The ancillary copyright is also necessary to protect press publishers from unfair exploitation of their services by search engines. Internet portals generate considerable advertising income and use aggregators , but they use the work results of journalists who in turn are paid by publishers. The publishers are therefore entitled to a share of this advertising revenue.

The Federal Association of German Newspaper Publishers takes the view that the prosecution of copyrights is no longer possible with systematic exploitation of press content. Declining sales of newspapers, weekly newspapers and popular magazines from around 14 billion euros in 2000 to 11 billion euros in 2009 and the shift to online media are cited as economic arguments.

Arguments against an ancillary copyright

Demonstration against ancillary copyright, organized by the digital society association

Against an ancillary copyright , it is argued that press publishers are already sufficiently protected by copyright . In addition, every publisher can secure his information offers by not putting them on the Internet for free. In addition, no one is obliged to have their texts recorded by search engines and can control or even exclude their recording by a simple index exclusion. If desired, only the preview text can be switched off. A listing in sub-services (e.g. Google News ) can also be blocked.

It is further argued that those who put their products on the Internet free of charge cannot prohibit the free flow of this content. Behind an ancillary copyright law lurks the more or less hidden demand for a fee collection system that implies a cross-border bureaucratic monster, which, not least, would have to make the very difficult distinction between the services of traditional media companies and those of other players in the information sector ( e.g. bloggers ). As a result, the ancillary copyright law leads to a kind of tax with which the business models of press publishers are to be supported.

Furthermore, statistical analyzes showed that there is a high level of overlap in the online presence of classic media, so that the pro-argument of the risk of a “thinning of information” that is detrimental to democracy is refuted. Instead, a differentiation of the world of publications will be realized through blogs, among other things.

Critics often use the comparison that the ancillary copyright for press publishers should be assessed as if the yellow pages had to pay remuneration to the companies listed therein.

The RSS format is also threatened in its existence by current drafts. The supplier of feed readers about, can subscribe for the user feeds, possibly the content would have to license all newspaper providers in Germany, even if only a fraction of the users really subscribed to the respective RSS feed. Since it is not mandatory to identify licensed content in the source code, the feed reader has no way of only allowing license-free feeds. The Federal Government responded evasively to inquiries about the legal effects on RSS, stating that the general abstract regulation will apply to specific issues after the law has been passed and that the courts will decide on the interpretation of the ancillary copyright law.

In general, this lack of labeling is also a main point of criticism of ancillary copyright law. Journalist Mario Sixtus described a scenario in which low-quality journalistic content is produced and indexed by Google; License fees, however, would only be noted in the terms and conditions. Since the terms and conditions cannot be understood and implemented automatically by machines, Google would now have to hire employees who regularly check the terms and conditions of all indexed websites for sudden price increases, which, however, seems hardly possible due to the huge index size of Google .

Scientific assessment and dissenting votes

HEDGEHOG

In December 2010 the counter-initiative “Initiative against an ancillary copyright (IGEL)” was created. Several organizations and internet portals such as the Chaos Computer Club , Creative Commons , Friday , Freischreiber , Google , gulli.com , the Heinrich Böll Foundation , netzpolitik.org , Perlentaucher , Spreeblick and Wikimedia Germany support the campaign. Individual journalists and the Brandenburg State Association of the German Association of Journalists (DJV) have also joined the campaign.

The initiative describes itself:

"IGEL is opposed to ancillary copyright law because it is neither necessary nor justified and would have dubious effects on the interests of third parties and the common good."

Many supporters publish critical articles about ancillary copyright in magazines, newspapers and blogs.

Georg Schäff from the Donaukurier in Ingolstadt was the first publisher to speak out against the ancillary copyright law on March 26, 2012.

Max Planck Institute

The Max Planck Institute for Intellectual Property and Competition Law published on 27 November 2012, an opinion on the ancillary rights, also from the German Association for the Protection of Intellectual Property was signed, as well as 18 leading professors. It emphasizes that the use of text excerpts (snippets) is already generally regulated by copyright law at this point in time, but that very short snippets generally do not reach the level of creation necessary for protection. With reference to various judgments of the Federal Court of Justice , it is shown that free publication on the Internet without technical protective measures equals tacit consent to the use of snippets by search engines.

The institute assumes that the publishers will not make use of their right to prohibit even when the law comes into force, as this would already be possible today with "simple technical means" and the publishers would have to rely on the linking by Google. It is also pointed out that the ancillary copyright law could restrict smaller actors in their actions. As a result, there could be a sharp reduction in the number of links to German press products.

According to the institute, property rights should not be introduced for economic reasons, since search engines did not hinder the ability of press publishers to make their own content available on the Internet. Rather, search engines would make press products easier to find.

The institute asks why content from publishers should be treated differently than content from other actors, which would also be based on investments . It is believed that the law would create additional legal uncertainty, since the definitions of “press product” and their “commercial use” are too vague. Various Internet services could stop their service in Germany or not even start up until they are clarified by the highest court. In addition, one sees a conflict between author and publishing rights. It is now up to the publishing house to decide whether articles would appear in a search engine, even if the author disagreed. Accordingly, the author does not have “directly enforceable legal protection against the publisher”.

In conclusion, it is assumed that the planned ancillary copyright law for press publishers will “run empty”. Publishers would not want to be deleted from search indexes, but at the same time search engine operators would not be willing to pay license fees for snippets. This could lead to the granting of free licenses and thus to a high expenditure without direct added value. The institute comes to the conclusion that the ancillary copyright law "would always be detrimental to the German economy" and would disadvantage domestic users. The government draft cannot be “justified by any objective argument”, so there is “no basis for adopting the proposed regulation”.

More votes against

The youth organizations of large parties, namely the Young Union , the Jusos , the Green Youth , the Young Liberals and the Young Pirates , have rejected the ancillary copyright law in a joint statement. You write: "It is incomprehensible to us that the legislature follows the argument of the publishers' associations". There are also dissenting votes within the parties that support the law, i.e. the CDU and the FDP . The Union MP Siegfried Kauder described the ancillary copyright law as a "sham" in which the profits of one group were skimmed off and given to others, which would correspond to a kind of Google tax. Also CSU -Politikerin Dorothee Bär has spoken out against it. She says the draft would lead to significant restrictions on communication in the 21st century, represent interests unilaterally and damage Germany as a business location. The FDP member Jimmy Schulz demands that robots.txt be recognized as legally binding instead of ancillary copyright .

On February 16, 2013, the FDP Lower Saxony rejected the ancillary copyright for publishers at its 71st state party conference in Ilsede with a clear majority.

On February 28, the German Association of Journalists demanded that MPs refuse to approve the present draft law, as the interests of the authors were not sufficiently taken into account.

Gerald Spindler , law professor at the University of Göttingen , writes clearly: “The draft law is unanimously rejected by German copyright lawyers” and describes it as “contrary to the system”.

The Federation of German Industries (BDI) has also spoken out against the ancillary copyright law, since companies are threatened with an “incalculable licensing obligation”.

The German Lawyers' Association writes in a statement that the arguments put forward for the introduction of ancillary copyright law are not convincing. It is also criticized that there is a risk that the new right intended as protection will run out in practice, while at the same time the efficiency of socially useful offers such as B. Search engines are only restricted to the territory of the Federal Republic of Germany.

The United States Sales Representative Office is currently reviewing an advertisement from the Computer & Communications Industry Association . Above all, an artificially constructed market entry barrier and a subsidy model for press publishers at the expense of other companies are criticized, which in principle corresponds to a tax. The ancillary copyright also violates the Bern Convention , which states:

“It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. "

- Berne Convention Article 10 Paragraph 1

So-called press reviews are expressly permitted here. If the report is recognized, there is a risk of trade sanctions for Germany. The so-called Special 301 Report normally only contains states whose monopoly legal protection does not go far enough. With Germany, a country could be on the list for the first time because it grants corresponding monopoly rights.

In November 2012, Google Inc. started the Defend Your Network campaign . The aim is for users to contact their respective member of the Bundestag so that they can vote against the proposed law. This campaign has been described by publishers as "counterproductive"; Google disguises its own interests as the common good and tries to maintain its non-transparent business model.

Criticism of media coverage

The media coverage of ancillary copyright law has been widely criticized. The media journalist Stefan Niggemeier published several episodes on this topic entitled Lies for Ancillary Copyright Law , in which he sharply criticized the media, especially with regard to censorship and misinformation.

For example, the critical opinion on ancillary copyright of the Max Planck Institute, signed by 18 professors, was largely ignored despite several dpa reports, while other less important proponents were reported.

It was also often claimed that Google would illegally take over the publisher's content. An article published in the Main-Post and Augsburger Allgemeine claims, for example:

"The American Internet giant collects texts in special news portals regardless of copyright or publishing rights."

However, publishers can deny Google access at any time using robots.txt. Furthermore, snippets do not violate copyright law. It is also possible to turn off the snippets, but still be displayed in the search results. For Google News, a separate registration using a form with Google is also required.

The Handelsblatt also distributed the claim that Google had censored search results "for hours" in its favor and removed articles critical of Google and reports on the debate on ancillary copyright.

The Association of German Magazine Publishers also claimed that the number of supporters of the law exceeded the number of critics. But while no other supporters of the law are known besides the publishers, it has been rejected by many industry associations and organizations.

Reactions to the introduction

Before the ancillary copyright law came into force on August 1, 2013, Google Germany contacted the press publisher in June 2013. These should inform Google whether they waive the claims from the law regarding Google News and grant it a free license. Otherwise your content would no longer be listed in Google News from August 1st; however, they remained in the normal search. As a justification, Google stated that six billion users of Google News worldwide continue to click on the pages of media every month and that Google therefore represents real added value for publishers.

Shortly before the ancillary copyright law came into force, it was announced on July 30, 2013 that many of the strongest supporters of the law, including the publishers Axel Springer, Burda and FAZ, agreed to another free listing in Google News by accepting the “ opt-in ” required by Google to have.

Not only Google implemented measures against ancillary copyright law. Since the beginning of August 2014, the web portals GMX , Web.de and T-Online have stopped showing search results for content from Axel Springer and other publishing houses that have their ancillary copyrights represented by VG Media . Lesser-known search engines are also restricting their services as a precaution or have since been completely discontinued due to ancillary copyright law. However, Google is the only search engine that has a free license from VG Media. This is regularly assessed as a distortion of competition and a strengthening of the monopoly-like situation of the German search engine market.

Ancillary copyright and EU

The EU Commission would like to introduce ancillary copyright law in the EU based on the example of German and Spanish ancillary copyright law. The Commission commissioned a study which it did not release for publication.

The study can be viewed by MEP Julia Reda using the rules on freedom of information . In it, the authors emphasize that ancillary copyright law harms the German press market.

literature

Web links

Commons : Ancillary copyright for press publishers  - collection of images, videos and audio files

Individual evidence

  1. a b draft law of the federal government - draft of a seventh law to amend the copyright law. (PDF; 205 kB) German Bundestag , November 14, 2012, accessed on December 7, 2014 .
  2. Eighth law amending the Copyright Act, text, changes, reasons and process flow ( Federal Law Gazette I p. 1161 )
  3. Countries approve ancillary copyright law. (No longer available online.) Federal Council , March 22, 2013, formerly in the original ; Retrieved May 25, 2013 .  ( Page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.bundesrat.de  
  4. ^ Coalition agreement between CDU, CSU and SPD, 18th legislative period, from December 16, 2013, p. 107.
  5. golem.de : Hearing in the Bundestag: Experts tear apart the ancillary copyright , from December 3, 2014.
  6. Focus online : Experts call for ancillary copyright law in the Bundestag committee , from December 3, 2014.
  7. ComputerBase : Ancillary copyright law is “half-baked” and “lobby-driven” , dated December 4, 2014.
  8. https://www.change.org/p/stoppt-die-zensurmaschine-rettet-das-internet-uploadfilter
  9. heise online : ECJ: German ancillary copyright law for publishers not applicable , from September 12, 2019.
  10. Susanne Klaiber: Google, publishers and the Bundestag: New ancillary copyright law: one law, many questions. Focus , March 1, 2013, accessed May 25, 2013 .
  11. Hamburg Declaration on the Protection of Intellectual Property. Axel Springer AG , June 26, 2009, archived from the original on April 6, 2013 ; Retrieved May 25, 2013 .
  12. Speech by Federal Chancellor Angela Merkel at the newspaper congress of the Federal Association of German Newspaper Publishers (No longer available online.) Federal Government , September 19, 2011, archived from the original on September 15, 2012 ; Retrieved May 25, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bundesregierung.de
  13. Florian Altherr: Merkel speech at the BDZV on media and Internet. netzpolitik.org , September 21, 2011, accessed May 25, 2013 .
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  19. a b Opinion on the draft law to supplement the copyright law with an ancillary copyright for publishers. (PDF; 77 kB) (No longer available online.) Max Planck Institute for Intellectual Property and Competition Law , November 27, 2012, archived from the original on February 24, 2013 ; Retrieved May 25, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.ip.mpg.de
  20. Questions and answers on copyright on the Internet: Ancillary copyright - who does it affect? tagesschau.de , August 30, 2012, accessed on May 25, 2013 .
  21. ↑ Ancillary copyrights for publishers - facts and arguments. (No longer available online.) Federal Association of German Newspaper Publishers , archived from the original on May 29, 2013 ; Retrieved May 25, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bdzv.de
  22. a b c Stefan Niggemeier : Lies for ancillary copyright law (1). Stefan-Niggemeier.de, July 4, 2012, accessed on May 25, 2013 .
  23. ↑ Withdraw website from Google News. Google , accessed May 25, 2013 .
  24. ^ Rainer Stadler: No sympathy for an ancillary copyright . Neue Zürcher Zeitung , August 31, 2010, accessed on May 25, 2013 .
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  27. Meike Laaff, Stefan Niggemeier: Ancillary copyright for press publishers: The small solution. The daily newspaper , March 5, 2012, accessed on May 25, 2013 : “It's like the yellow pages have to pay companies to accept their information. As if the bus driver had to give the fair operator money to bring the customers to him. "
  28. ^ Achim Sawall: Federal Government: Ancillary copyright law could apply to social networks. golem.de , December 12, 2012, accessed May 25, 2013 .
  29. Juergen Scheele: Federal Government: The courts decide on the interpretation of the ancillary copyright law. Digitale Linke, December 11, 2012, accessed May 25, 2013 .
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  32. Tom Webel: DK publisher Georg Schäff against ancillary copyright: "Dealing with digital change" DK publisher Georg Schäff against ancillary copyright: "Dealing with digital change". Donaukurier , March 26, 2012, accessed on May 25, 2013 .
  33. Protest against ancillary copyright law : The youth unite. n-tv , November 29, 2012, accessed May 25, 2013 .
  34. Stefan Krempl, Andreas Wilkens: CDU right-wing politician considers ancillary copyright to be sham. Heise online , October 25, 2012, accessed on May 25, 2013 .
  35. Bär (CSU): “Ancillary copyright law must not become a German ACTA”. iRights.info , June 21, 2012, accessed May 25, 2013 .
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  37. Hendrik Zörner: LSR: DJV against draft law. German Association of Journalists , February 28, 2013, accessed on May 25, 2013 .
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  39. Ancillary copyright law: Industry railed against the draft law. (PDF; 57 kB) Spiegel Online , June 21, 2012, accessed on May 25, 2013 .
  40. ^ Opinion of the German Lawyers' Association by the Intellectual Property Committee on the draft of a Seventh Act to amend the Copyright Act (BT-Drs. 17/11470). (PDF; 38 kB) (No longer available online.) German Lawyers' Association , January 2013, archived from the original on May 14, 2013 ; Retrieved May 25, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.anwaltverein.de
  41. ^ Berne Convention for the Protection of Literary and Artistic Works. Berne Convention , September 28, 1979, accessed May 25, 2013 .
  42. Peter Mühlbauer : Ancillary copyright law could lead to trade sanctions. Telepolis , February 20, 2013, accessed May 25, 2013 .
  43. "Defend Your Network": Google's campaign against ancillary copyright law. Stern.de , November 27, 2012, accessed on May 25, 2013 .
  44. Michael Hanfeld: Google Imperialism . In: Frankfurter Allgemeine Zeitung . Frankfurter Allgemeine Zeitung GmbH, Frankfurt am Main November 29, 2012.
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  46. a b Stefan Niggemeier: Lies for ancillary copyright law (3). Stefan-Niggemeier.de, January 22, 2013, accessed on May 25, 2013 .
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  48. Stefan Niggemeier: Lies for ancillary copyright law (5). Stefan-Niggemeier.de, February 28, 2013, accessed on May 25, 2013 .
  49. a b Stefan Niggemeier: Then let's talk about »censorship«. Stefan-Niggemeier.de, November 29, 2012, accessed on May 25, 2013 .
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  54. Jürn courses / TAZ: "And you're out of here" (accessed on September 18, 2014)
  55. Stefan Niggemeier: Ancillary copyright works: Several search engines no longer display publisher pages (accessed on September 18, 2014)
  56. Friedhelm Greis: Ancillary copyright: How VG Media makes life difficult for Google's competition (accessed on March 20, 2015)
  57. Industry association BITKOM: Ancillary copyrights for press publishers - an inventory , accessed on March 20, 2015 (PDF; 1 MB)
  58. ^ Online News Aggregation and Neighboring Rights for News Publishers. Draft. In: EU Commission. December 20, 2017, accessed January 1, 2017 .
  59. Patrick Beuth: EU Commission withholds critical study. A study commissioned by the EU Commission states that ancillary copyright law for press publishers is ineffective. It was never published. In: Zeit Online. Zeit Online GmbH, December 22, 2017, accessed on December 22, 2017 .