This article by Till Kreutzer was first published in Computer Law & Security Review (CLSR), 27 (2011), 214-216.
Since the beginning of the year 2009 the German press publishers have lobbied for their own neighbouring right. For some time the lobbying appeared to be very successful. In its coalition contract the new conservative-liberal German Government that was elected in late 2009 declared: “Press Publishers shall not be discriminated against other disseminators of copyright protected works [e.g. film or music producers]. Therefore we aim for the introduction of a neighbouring right for press publishers to increase the protection of press publications on the Internet.” [1]
This commitment was e at such a point of time e at least surprising. Neither had the potential consequences or risks of such legislation been evaluated nor had any other involved interest group been consulted before. It was not even clear then how a neighbouring right that would serve the alleged needs of the press publishers could be designed. The press publishers had never precisely outlined their demand.
A more detailed insight of the concept the press publishers hadinmindwas initially brought into the light of day in May 2010 when the German copyright website iRights.info leaked an internal draft that was designed by the powerful publisher’s associations BDZV (Bundesverband Deutscher Zeitungsverleger) and VDZ (Verband Deutscher Zeitschriftenverleger) and – behind closed doors – negotiated with two unions of the German journalists (DJV – Deutscher Journalisten-Verband and DJU – Deutsche Journalistinnen- und Journalisten-Union). [2]
According to this draft, the publishers were aiming at an unprecedented new Intellectual Property Right, which was neither comparable with the existing neighbouring rights of film and music producers nor with the British publisher’s right (the copyright for the typographical arrangement of published editions). Quite the contrary: In the proposal the publishers brought forward (inter alia) two unique exclusive rights that are unprecedented in the realm of IPR.
It was clear from the outset that the approach of the press publishers was targeted primarily at Google. Nowadays most press publications on the Internet are accessible for free. Early approaches of the publishers to charge for the access to their websites or to introduce pay-perview failed so the concept of paid journalistic online content was broadly abolished. Hence the traditional business model of press publishing (i.e. making profits by selling content to the readers complemented by advertising revenues) was thrown overboard. For their online content the publishers reduced their source of income to advertising revenues only.
Over the last years it turned out that these revenues are not sufficient to achieve large profits, not even to redeem the significant investments that are required to establish and maintain press websites. One of the main reasons is that the advertising budgets of the economy are nowadays allocated to a bigger variety of media than in the “analogue times”.
Another is that new stakeholders entered the advertising business in the course of the rise of the Internet. The main new player is Google, which is one of the biggest advertising brokers in the market and moreover one of the few companies that successfully generate big profits from the online business.
In the course of their approach for a new neighbouring right the German press publishers started to criticise Google’s business model as free riding. They maintained that Google earned money with other people’s content and publications in an unfair way. Especially news aggregators like Google News distracted the advertising revenue streams and by that gathered profits that would be actually due to the content providers (like the press publishers). Obtaining entitlement to a “fair share” of this income would not only be appropriate but also a basic prerequisite to maintain “quality journalism” in the digital age.
The publishers identified a new exclusive right in “snippets”, i.e. small parts of press articles like single sentences, headlines or even single words as an adequate instrument to achieve this “fair share” from the information brokers. This is true indeed. Google and other such companies only display small extracts from textual online contents, which are not protected by the actual (copyright) law but public domain. Like the language itself, short sentences and other non-original formulations can be used by anybody without any constraint.
Hence the providers cannot claim license contracts or levies for the use of snippets on the basis of their (mostly exclusive) exploitation rights that they derive from the journalists. To remunerate the publishers for such uses of their online content in search engines and news services a protection of single formulations, sentences or headlines that would significantly extend the copyright protection of works of language would actually be required.
Due to this effect many critics opposed the draft as an approach to monopolise the German language itself in favour of the particular interests of the press publishers. The publisher’s associations reacted to the critique by changing their argumentation. Against the wording of their own draft, they argued that they never claimed an exclusive right on simple formulations.
In fact the neighbouring right should not protect the wording itself but rather from the unauthorised extraction of snippets from the original sources (the online press publications). How such a distinction could be realised in a legal wording or how the act of use should be precisely defined was never explained until now. Hence it remains unclear what uses of such snippets would be subject to license and remuneration obligations in terms of the new right or who the liable users could be (e.g. only search engines, or also other information aggregators, bloggers, other publishers who use e perhaps due to simple coincidence e the same formulation etc.).
The second novelty in the publisher’s draft for their new neighbouring right is an unprecedented right to read copyrighted articles. Hitherto copyright law covers only “uses” of the protected material, i.e. acts of reproduction, distribution or making available to the public. The act of mere reception (like reading a book or a newspaper, watching a movie or listening to music) is, on the contrary, out of the scope of copyright protection.
The wording of the draft reveals that the publishers want to change this main principle of copyright law. Arguing that it would be impossible to achieve acceptance of market based paid journalistic content models in the online world they demand a compulsory paid content model imposed by copyright law itself. To achieve this, the new neighbouring right should oblige “commercial users” (i.e. readers) to license the access to and use of the websites that are (voluntarily) provided free of charge by the publishers.
Such a “reception right” would affect every company, freelancer and public authority. Everybody who reads online press articles, not only for private purposes, would be obliged to negotiate a licence contract with a collecting society (the publishers announced plans to introduce a new collecting society to administer their neighbouring rights). The publishers maintain that such an obligationwould be fair. Who uses other people’s content for (at least) commercial, i.e. non-private, purposes should – notwithstanding whether it is made available free of charge or not – be liable to financially compensate the rights holder.
This approach was also widely opposed. Again the publishers reacted by changing their approach. All at once they maintained not to require anybody to get licenses for merely reading the articles but only for copying or making them available. This twist was surprising since the publishers already have the position e on the basis of the copyright in the articles e to prohibit or license such uses (at any rate if copying or making available serves non-private purposes).
Yet the question remains what goal can be achieved with such an approach. Duplicating a legal position that already exists creates no additional benefit. On the other hand, the question arises why any company or public authority should conclude a license agreement for copying or making press articles available when these articles are permanently offered free of charge to anybody from the rightsholders themselves. A particular rule for the publication of press reviews – if something like that is intended – already exists in the German Copyright Act.
After iRights.info had leaked the internal draft it was opposed more or less unanimously by scholars, the German industry, the civil society, web community, freelance journalists and many other interest groups.
For example the scientific community, represented by the German Association for Protection of Intellectual Property (GRUR – Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht) commented that such a neighbouring right for press publishers would not be equivalent to other neighbouring rights (like the music or film publisher rights). [3] Irrespective of its concrete design such right would be either useless or unjustified. It would lack effect if it covered only uses that fall within the scope of copyright protection. Extensions of copyright, especially towards a protection of information or even the language itself, would be unjustified.
The German industry came up with similar arguments. In an unprecedented initiative twenty-four large German trade and industry associations (among others the “Association of the German Industry” – BDI) united publicly to oppose the publisher’s demand. [4] The proposal of the press publishers to implement a compulsory levy “through the backdoor” that affected the whole German industry would be unacceptable from a regulatory and economical point of view. It also limited fundamental freedoms and would constrain innovation, since the need for publishers to develop market based innovations would cease to exist.
Another big alliance was formed in the “Initiative against a neighbouring right (for press publishers)” (IGEL) that was initiated by the author of this article. This initiative is supported by a large variety (in numbers: 36 down to the present day) of influential blogs, companies (like e.g. Google), law firms and other institutions (like Creative Commons, the Wikimedia Foundation, the Chaos Computer Club and others).
The initiative opposes the neighbouring right for press publishers because of the potential collateral damage to fundamental freedoms like the freedom of the press, the freedomof expression, the freedomof science and education as well as the communication and publication practises on the web. It maintains that such a right would impinge upon the author’s rights and criticises the lack of transparency in the political process and the suppression of the issue by the daily press. Furthermore the initiators contest the assertion that a new IPR is needed to maintain “quality journalism” or even press related business models in the information society.
Whether the German legislator will introduce a new neighbouring right for press publishers is still uncertain, not to mention the final design of such a new right. Notwithstanding the broad opposition of all interest groups (except the publishers), the German Ministry of Justice seems to be determined to come up with a proposal for the implementation of such new right. If so it can be expected in spring 2011. However, the final decision will be taken by the Parliament. Whether the press publisher’s position will prevail over the arguments of the whole German industry and all other stakeholders is awaited with bated breath.