[x-pubpol] German Parliament Passes News Licensing Law, but Its Future is Unclear

[Joly MacFie]

http://techpresident.com/news/23567/german-parliament-passes-news-licensing-law-its-future-unclear

BY MIRANDA NEUBAUER <http://techpresident.com/blog/82805>

The German Parliament has passed a watered-down version of a
government-sponsored proposal that could require some search engines and
news aggregators to pay a license fee to republish news content.

The bill now goes to the upper house of parliament. And even if it takes
effect, it remains unclear how much power and meaning such a law aimed at
applying German copyright law to Germany-based websites and services can
have given the global nature of the World Wide Web. Will Germans suffer if
they are blocked from using certain news apps? And how, if at all, can the
law apply to a website based in the United States republishing or
aggregating news content from a German news website? The law seems to be
another symptom of the inherent dissonance between national laws and
business models and the global
Internet<http://techpresident.com/news/wegov/23533/citing-russian-meteorite-videos-german-journalists-warn-youtube-copyright-dispute>
.

The original proposal, backed by news publishers, targeted Google News with
a requirement that a license fee was necessary for displaying news
snippets, German news reports indicated. But after a hearing by the
parliament's legal committee earlier this week, the language of the
proposed law was changed to include the following passage: "So that search
engines and aggregators can briefly describe their search results without
infringing on the rights of the rightsholder, the law should not apply to
individual words and the smallest text excerpts."

Wiggle room is rare in German copyright law. An Indiana University Law
School research
paper<http://copyright.surf.nl/copyright/files/International_Comparative_Chart_ZwolleIII_1104.pdf>
notes
that "German law includes no broad statutory concept of 'fair use' or 'fair
dealing.' German Law on Copyright and Neighboring Rights includes numerous
exceptions, but they are usually narrowly crafted to specific circumstances
and specifically defined activities."

As techPresident has previously
reported<http://techpresident.com/news/23207/hashtags-and-robotstxt-german-parliament>,
large German news publishers back the law because they see it as a way to
make sure that they are compensated for reuse of their copyrighted news
content for commercial purposes. Critics, including Google, said the law
could harm the link ecosystem of the Internet, lead to legal uncertainty
and harm innovation in Germany. Google led a public "Defend Your Net"
campaign<http://techpresident.com/news/23387/google-maps-opponents-german-news-license-fee-law-proposal#1>
with
a YouTube video and an effort to show opponents to the law populating a map
of Germany. While German news outlets characterized the changed language as
a way to exempt
Google<http://www.spiegel.de/international/germany/germany-waters-down-google-search-engine-legislation-a-885899.html>,
a Google Germany spokesperson today still expressed
opposition<http://www.reuters.com/article/2013/03/01/net-us-germany-internet-idUSBRE9200UA20130301?feedType=RSS&feedName=technologyNews&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+reuters%2FtechnologyNews+%28Reuters+Technology+News%29>
to
the law to Reuters.

"The law is neither necessary nor sensible. It hampers innovation and hurts
the economy and Internet users in Germany," a spokesperson is quoted as
saying.

The association of freelance
journalists<http://freischreiber.de/home/google-gewinnt-freie-journalisten-verlieren>
was
also critical, writing, "Google wins, freelance journalists lose."

The association of German journalists was also opposed to the law. It
criticized<http://www.djv.de/startseite/profil/der-djv/pressebereich-info-download/pressemitteilungen/detail/article/djv-gegen-gesetzentwurf.html>
the
law for not taking into account the interests of the authors of the news
content or set up any kind of compensation process for journalists.

In the German political landscape, the law was mainly supported by the
coalition of German Chancellor Angela Merkel, comprising the Conservative
CDU/CSU and the free-market Liberal FDP. The law was opposed by the
opposition Social Democrats, the Greens and the Left. And the support for
the law was not unanimous. The youth organization of the CDU had joined its
counterparts<http://www.spiegel.de/netzwelt/netzpolitik/jusos-junge-union-junge-liberale-gegen-leistungsschutzrecht-a-870005.html>
among
Social Democrats, the FDP, the Greens and the Pirates in opposing the law.
Skepticism and opposition also came from some FDP MP's and MPs from the
CDU/CSU, including Dorothee Bär,chair of Cnet, the net policy working group
of the CSU <https://twitter.com/CSU_net>, the Bavarian sister party of the
CDU, and MP Peter Tauber, spokesperson for Cnetz, the net policy
association of the CDU, which is also opposed to the
law<http://c-netz.de/2013/02/27/cnetz-lehnt-gesetzesentwurf-zum-leistungsschutzrecht-ab/>
.

Ahead of Friday's vote, there was also an online
petition<http://christdemokraten-gegen-lsr.de/> by
CDU/CSU supporters to express their opposition against it, which received
86 signatures.

Before and during the vote, a small protest led by the Netzpolitik blog
took place in Berlin<https://netzpolitik.org/2013/bundestag-beschliest-leistungsschutzrecht/>.
The protesters carried signs with messages such as "Intellectual Properly
Law: Reform it instead of Cementing it," "The law is not a net-free space,"
"A licensing law for demonstration signs," "Our lawyer will clear up if we
can blog this," and "For they don't know what they are doing," a Biblical
allusion and allusion to the German title of the film "Rebel Without a
Cause" (... denn sie wissen nicht was sie tun.) A counter-protest sign by
news publishers on a van read "No to commercial content-theft."

Earlier this morning, the law was
approved<http://parlameter.zdf.de/indexc.shtml?> with
a CDU/CSU and FDP majority, 293 to 243. Tauber and Bär were the only MPs
from their parliamentary group to vote no, along with four members of the
FDP. Two CDU/CSU members abstained. There were 83 MP's absent from the
vote, and freelance journalist and blogger Wolfgang Michal noted that many
of the missing<http://carta.info/54940/opposition-aus-spd-grunen-und-linken-verhilft-lsr-zum-vorlaufigen-sieg/?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+carta-standard-rss+%28Carta%29>
were
prominent members of the opposition parties, in effect making the passage
of the law possible, because they would have had a majority if they had
been present and all voted no.

Screenshot of vote overview from German public broadcaster
ZDF<http://parlameter.zdf.de/indexc.shtml?>

The law still could be blocked by upper house of German Parliament, the
Bundesrat, which represents the 16 German state governments and the
Social-Democratic-led governments have a majority to block the law. Der
Spiegel reported<http://www.spiegel.de/netzwelt/netzpolitik/leistungsschutzrecht-sieben-fakten-zum-google-gesetz-a-886063.html#ref=rss>
that
it was unclear whether the governments were unified on the issue, with
Lower Saxony expressing its opposition to it, and Northrhine-Westphalia and
Rhineland-Palatinate proposing their own compromise. Michal suggests that
the opposition is playing for time, given the parliamentary election
scheduled for the end of September, and that opponents will take a stand
and the let the law "fester" in the arbitration committee in the spring and
late summer. iRights.info
explains<http://irights.info/bundestag-beschliest-leistungsschutzrecht-fur-presseverlage/11969>
that
the Bundesrat can technically only delay the law, but that the law could
theoretically fail if the legislative process isn't completed before the
election.

Der Spiegel notes that even with the changed language, the law could still
apply to news aggregators and apps like Flipboard. The creator of German
blog aggregator Rivva
wrote<http://blog.rivva.de/rivva_und_das_leistungsschutzrecht> that
even though he was able to live with the language in the new version, he
still feared legal risk. For that reason, he explained that he had already
reduced the length of the site's preview text to 160 characters.

Der Spiegel notes that the law does not specify the exact length of allowed
text excerpts. As an earlier Der Spiegel
article<http://www.spiegel.de/politik/deutschland/leistungsschutzrecht-netzpolitiker-machen-kurz-vor-der-abstimmung-mobil-a-886141.html>
noted,
"Here is where the fun begins. How long, in effect, is short? When does
short become too long?" That determination, Der Spiegel writes, would
likely be left up to the publishing companies or be specified through
litigation. Der Spiegel also notes that many of the problems facing German
news publishers have to do with lack of effective mobile ad formats and low
prices for online advertising, rather than aggregation. Der Spiegel also
notes that news sharing on social media sites like Facebook is likely not
affected, since that is done manually and is not the result of a technical
algorithm affecting mass quantities of content, and would be protected by
the citation right.

In a statement<http://www.vdz.de/medienpolitik-leistungsschutzrecht-singlenews/hash/affa0e29fb32549144cf57d53568dd31/news/xuid2815-verleger-begruessen-bundestagsbeschluss-zum-leistungsschutzrecht/>,
the association of German news publishers praised the passage of the law,
even though it didn't take into account all of their demands. The law is
not associated with an "automatic utilization right," the statement says.
"Rather, the publishing houses are free to make their own managerial
decision as to what they want to arrange with search engines and
aggregators that want to use their content for commercial purposes."

For the association of companies and organizations opposing the law the
next step is clear.

"Last resort Bundesrat," the group wrote on its Facebook
page<http://www.facebook.com/leistungsschutzrecht.info/posts/482779905116722>,
referring to the upper house of parliament.
-- 
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WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
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