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The press publication right from the German perspective

As already anticipated in an evaluation of the EU Consultation regarding "the Role of Publishers in the Copyright Value Chain and on the “Panorama Exception”", the Proposal for a Directive on copyright in the Digital Single Market includes a chapter on rights in press publications.

October 2016

Looking at the efforts to create a Union-wide press publisher right from a German perspective, it is disappointing that the EU legislator attempts to take the existing but flawed German legal framework as a starting point and is about to add some more confusion to copyright in the online context.

Germany is, besides Spain, the only country in the EU which already provides for an ancillary copyright for press publishers in the digital context. Yet the law has led to results which are quite the opposite of what the legislator intended. The consequences are particularly obvious with regard to Google’s news aggregator service. In Germany, the vast majority of press publishers agreed to their publications being indexed in Google News without a fee, and in Spain, Google shut down Google News completely rather than attempt to comply with the new law.

Developments and experience in Germany

In Germany, the controversial ancillary copyright for press publishers was first discussed seriously in around 2010 in the context of online news aggregators. The main motivation was to grant publishers the same level of protection for the online use of the publications as in the offline world. Yet, in the vast majority of cases, publishers already hold exclusive licences to the content provided by the authors, so critics challenged the need and justification for additional protection of press publishers. Nonetheless, accompanied by fierce criticism by – among others – renowned institutions such as the Max-Planck-Institute and the German Association for the Protection of Intellectual Property (GRUR), the law was passed by the German Parliament and came into force in 2013.

So far, the law has failed. All of the negative consequences predicted by academics and other critics have materialised: for example, in practice it is completely unclear how exactly to grasp the subject-matter of this right. The law, therefore, lacks legal certainty. Furthermore, it remains a shell without practical application because many relevant publishers quickly realised that news aggregators help to create traffic on publishers’ websites and do not free-ride on the investment of others. As an example, a prominent publisher in Germany reported a drop of up to 80% in the traffic on its websites following Google’s decision to only list hyperlinks without small snippets in Google News. The result was that many publishers agreed to include their websites in Google News without a licence fee in order to avoid losing the significant number of users redirected to their own websites from the news aggregator service.

Replicating mistakes on the EU level?

The Commission appears to be repeating the mistakes the German legislator made with the introduction of the ancillary copyright. The wording of Article 11 of the draft Directive reflects the German provision to a considerable extent. However, by providing not only the right of making available to the public, but also the right to reproduce the press publication, it goes beyond the current German law. In addition, whereas the German legislation excludes “smallest text snippets” from the exclusive right of the press publisher, the draft Directive is silent on this aspect. This means it remains unclear whether even smallest excerpts such as "Man City beat Liverpool" will enjoy protection under an EU press publisher right. It was precisely this scenario ("Bayern schlägt Schalke") which resulted in the implementation of a threshold in the German provision.

In addition, the proposal stipulates a term of protection of more than 20 years – in the context of digital media, this may as well be centuries rather than decades. In Germany, the right for press publishers lapses one year after publication. The reason for this limitation was that, generally speaking, press publications lose the need for protection over time, as their topicality and, consequently, their economic value decrease. Why the Commission deems a long period of two decades necessary, is one of the many issues to which the draft Directive fails to provide answers. There is a real risk that the new right will affect the every-day experience of users relying on the internet for news as well as the gathering and distribution of information online.

Outlook

Commissioner Oettinger seems determined to push his concept of the German-influenced press publisher right through the legislative process, irrespective of the many warning signs that can be seen from Germany's experience. It will be interesting to see whether the Commission will adhere to the wording in the proposal, not least because a considerable number of MEPs had already announced prior to the draft proposal that they strongly oppose the introduction of a right for press publishers. It is not just potential internet users who have doubts. Although it may first appear that the Commission speaks for the majority of press publishers, many do not support this additional protection which may ultimately turn out to be detrimental for them.

The Commission’s efforts may entail considerable risks for internet-based business models, in particular for new and developing startups. Perhaps more worryingly, making access to information more expensive or complex, may ultimately be detrimental to the right to freedom of information. A careful balancing of competing interests and rights is, therefore, key. Avoiding barriers to innovation and access to information are criteria the EU legislator should be mindful of in further discussions regarding the proposed right in press publications.

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DSM proposals on press publishers in the context of current German regime
Malek Barudi


Malek considers the EC's decision to model the new press publisher right on the controversial German regime.

"It is disappointing that the EU legislator attempts to take the existing but flawed German legal framework as a starting point and is about to add some more confusion to copyright in the online context."