Copyright Law: Think Small And Thin

Michael Hedges March 4, 2013 - Follow on Twitter

If the digital age needs dramatically different copyright law, the wait keeps getting longer. Legislatures looking to the past to chart the future choose vague language so everybody stays happy or, at least, quiet. And it’s the small things that get in the way.

The lower house of the German parliament – the Bundestag – passed (March 1) new terms in German copyright law that extends the rights of a publisher to demand permission before search engines and web aggregators simply scrape content. The law, if ratified, will entitle publishers to some sort of compensation and force search engines to negotiate on price. The Bundesrat, the upper house, will now debate the law and vote their will.

Publishers have long sought a revenue stream directly from search engines, Google in specific, through the courts. Copyright law written in the pre-digital age hasn’t cooperated. Quoting and excerpting copyright material has been acceptable under the fair use principle, which some countries accept and other do not. This is a problem in the digital age.

The German MPs, largely Christian Democrats (CDU) and Free Democrats, added a small change before voting that will allow “single words or small text excerpts” in search results, no fee attached. What constitutes “small” will occupy the courts for years and the word “snippet” enters the legal lexicon. Some German media watchers suggest the freely allowed snippet might be limited to the Twitterish 160 characters. The distinction is anything but small.

“This wasn't necessary when papers used to appear only in print form,” said CDU deputy Günter Krings, quoted by agency dpa (March 1). “We want the performance and effort to pay off, including in the areas of journalism and publishing.” Big German publishers Axel Springer and Bertelsmann subsidiary Gurner+Jahr lobbied hard.

Declaring victory, the German publishers association BDZV said the Bundestag closed a legal loophole. “Although the adopted text does not consider all ideas, the new intellectual property right for publishers is an important element of a fair regulatory framework for the digital world,” said a statement. The legislation holds publishers to a one-year limit on licensing content.

German publishers took public broadcasting network ARD to court over text content in a news program’s mobile app. Offering only vague guidance, the courts told the contending parties to negotiate something. Three years later, negotiations continue. Commenting on the vague “snippet” language, Social Democrat (SPD) speaker in the Bundestag Thomas Oppermann said it’s a “jobs program for lawyers.” SPD and other center-left and left MPs voted against the copyright law amendments.

With a hopeful tone, the European Publishers Council (EPC) welcomed the vote outcome for “paving the way” to commercial negotiations with Google, other search engines and aggregators. “News publishers can now demand that search engines and other providers of such services that aggregate their content, refrain from unauthorized forms of usage,” said the EPC statement (March 1). “These companies will need licenses for such usage in the future.” (See EPC statement here)

Google, which mounted a significant lobbying and public relations campaign, was neither impressed nor unhinged. “The law is neither necessary nor useful,” said chief lobbyist Kay Oberbeck in a statement. “It hinders innovation and harms the economy and internet users.”

Failing to force Google to pay for giving it free marketing, German newspaper publishers may find another clause unpleasant. Where a license and fee are assessed, authors will receive from the publishers “a reasonable share of the remunerations.” It seems that slice of the Google money keeps getting thinner.

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