[Advocacy Advisors] [FYI] German Leistungsschutzrecht bill in parliament

Thu Jan 31 15:32:27 UTC 2013

Hi,

I am forwarding an article I wrote at
http://searchengineland.com/german-leistungsschutzrecht-146826 about
an expert hearing in the German parliament yesterday on a proposed
change of copyright:

Yesterday, the Judiciary Committee of the German Bundestag — Germany’s
national parliament — held an expert hearing on a proposed
“Leistungsschutzrecht” law for news publishers. The law, known as
“ancillary copyright” in English, would require search engines and
others — perhaps even Facebook, Twitter and individual bloggers — to
pay news publishers if they link to or even briefly summarize news
content.

The hearing didn’t result in a vote. It was the next step in a process
that may lead to Leistungsschutzrecht becoming law or not. Below, some
background on what happened at the hearing, along with some analysis
from my perspective about the law.

Before I go further, an important note. I am not a lawyer. English is
not my native tongue, and I am not a trained journalist. Please do not
expect legal expertise, journalistic style or proper English. I do not
speak on behalf of anyone else. This is my personal opinion. But I
have I’ve been tracking “Leistungsschutzrecht für Presseverleger”
since 2009, as part of my work for Wikimedia Deutschland, as we’ve
tried to figure what impact it might have on us or others.

Background About Leistungsschutzrecht

Under the current copyright law in Germany, it is perfectly legal to
operate a for-profit search engine that contains search results from
German news publishers. It is legal to allow users to enter search
terms and to display search results that contain a link to pages
matching the search terms. It is also legal to add a snippet to this
link and present a small piece of information that might help the user
understand if this is a meaningful search result you might want to
click on.

The draft Leistungsschutzrecht bill (known as “LSR”) was formally
proposed by the German government coalition in August of 2012 and
passed to the German parliament for action. That action will involve
several readings and committee reviews, of which yesterday’s hearing
was only one.

If this bill is enacted as-is, search engines would no longer be
allowed to display snippets unless they had received permission first.
This is very crucial aspect of this Leistungsschutzrecht. It is not
meant as an opt-out tool that allows you to operate a search engine
unless the publisher objects and has his web sites removed. Quite the
opposite, it is up to the search engine operator to ask for permission
first.

LSR would grant news publishers an exclusive right to “make public”
news content for one year, though what exactly “news content” would be
is unclear. Part of the proposed law defines this as essentially doing
what the press “usually does,” explicitly mentioning informing,
offering opinions and entertaining.

After the year exclusivity period had passed, the right would be
transferrable. There are provisions to ensure authors or other right
holders are not disadvantaged. Other provisions would extend rules
specifically aimed at requiring search engines and ”commercial
providers of services who process content respectively” to seek
permission for use.

The bill does not have requirements on payments. It is quite possible
that in an LSR world, a news publisher grants permission to a search
engine for free use. It is also possible that the press publisher pays
the search engine in order to get included into a web site. In any
case, the default switch is set to, and I am going to use a German
term here you might remember from the TV show Hogan’s Heroes:
VERBOTEN.

How Would It Work? Unclear

There are many unanswered questions and uncertainties about how LSR
would work. For example, how does a search engine how whether a
something is a news story? The answer is simple: it doesn’t.

A news story published by a journalist on his personal web site and
meant as an example of his skills will not be covered by the LSR,
whereas the same exact text on the web site of a publishing house will
be covered by the LSR.

It is a matter of open debate whether blogs will qualify as press
products. A safe approach for a search engine operator will be to
assume that all content is press content until evidence to the
contrary surfaces.

Next question: Why don’t publishers simply use robots.txt to exclude
google from listing them? The answer is, again, simply: A large share
of revenue comes from showing ads to visitors who come in via Google
and Google News. There is no economic point in shutting down one of
your largest sources of income. Publishers want to have Google
continue sending them customers and at the same time get paid for it.

Who doesn’t want to have the cake and eat it, too? Some publishers
have tried to present robots.txt as a binary measure that is incapable
of preventing the indexing of only parts of a web site or the
selective exclusion of services like Google News or the ability to
disable snippets. Their objections have been disproven by (LSR
opponent and journalist) Stefan Niggemeier.

Yesterday’s Expert Hearing

Yesterday’s hearing was, as best we know, the only expert hearing that
will be held as the proposed law is considered. It lasted for three
hours. It allowed members of the Bundestag to ask questions to nine
experts who were picked by the five parties in parliament (larger
parties got to allocate more expert slots). These experts were allowed
to submit written statements before the hearing (you can find them in
German here).

Parts of the hearing were easily predictable. Members of the political
opposition (which is against the proposed law) had picked scholars to
speak against it. The governing parties had picked experts supporting
the law. Questions from one party to their own experts were meant to
create the opportunity for these experts to elaborate on their
arguments in favor or against the Leistungsschutzrecht.

While it was an expert hearing, it wasn’t focused on technological
expertise. Instead, it was more a scholarly or philosophical
examination, of how such a law might fit into the current framework of
constitutional law, European Union law the current dogmatic style of
copyright.

Whenever a technical question was raised, the answers were vague,
evading or simply hilarious.

A representative from the publishers’ associations in favor of the law
kept on repeating a demand for technical language with a much more
complex vocabulary to express conditions such as temporal, topical or
size restrictions, payment requirements and other conditions.

So far, he has been unable to present a viable way how this could be
implemented and he has failed to explain the obvious: the language he
proposed would only constitute an invitation to negotiate on the
terms. It would not substitute the negotiations itself, bringing us to
the argument of a huge and crippling bureaucratic nightmare or
opt-in-rights negotiations.

All experts in this hearing agreed that this law will create an era of
legal uncertainty, and it will require a series of lawsuits to create
enough case law to see who will actually be within the sights of the
LSR. The time span mentioned was five years or more. Until then, any
professional legal advisor would be required to warn his clients
against innovating or investing in search engine projects in Germany
because of such uncertainty.

Till Kreutzer, a legal expert and vocal LSR opponent who was among the
nine invited experts was correct to point that out. He’s been working
on this topic since it first emerged as a proposal by the publishers’
association in 2009. He and several other experts agreed during the
hearing that the current LSR design will most definitely favor large
corporations over smaller startups and smaller publishing houses and
that the economic effects of this law will strengthen the position of
both Google and companies like the Axel Springer publishing house.

Beyond Google: Twitter & Facebook?

At one point, parliament member Burkhard Lischka, of the opposition
Social Democrats party, asked expert Christoph Keese of the Axel
Springer publishing house if the proposed law would apply to news
content that is shared on Twitter and Facebook.

Keese ducked the question. That’s probably because he, like most,
doesn’t know. No one will for certain until a court case happens.

The Law Has No Clothes?

A key point during the hearing, to me, was when the parliament member
and committee chair Siegfried Kauder, of the Christian Democrats party
that’s part of the ruling government coalition, stated that after
hearing from the experts, it seemed that the law was unlikely to
actually produce new income for news publishers. Given this, he asked,
why did it make sense to still pursue it?

Despite Kauder’s party being in favor of the law, he’s opposed to it
but unable to actually stop it. His statement resulted in some
laughter, perhaps because it was an “emperor has no clothes on”
moment. So many seem to understand the absurdities in the proposed law
that it’s almost humorous.

Next Steps

What happens next? There might be political pressure to have another
expert hearing, this time with experts from the technical and
commercial world. However, the chances are quite limited, and the
governing coalition has shown little interest in dropping this
endeavor.

In particular, there’s a general election of the Bundestag in
September. If this law is going to have a good chance to pass, it has
to reach the President’s desk well ahead of that date. The coalition
government might try to speed up getting recommendations in favor of
introducing such a Leistungsschutzrecht in order to have the second
and final required readings by February. The very last possible date
for a second and final reading is the last week of June.

In the meantime, all it took was a skilled programmer to come up with
a tiny Chrome extension that will detect URIs in plain text and create
snippets on the fly, thereby completely circumventing the LSR. You can
test the proof of concept here have a look at thescreenshot that
compares a demo page without the plugin or with the plugin enabled.

It is almost certain that if this LSR becomes law, a huge amount of
legal expertise and programming skills will be wasted to present
workarounds to the LSR to restore what had been possible until then or
come up with technical or legal countermeasures to stop these
workarounds. One might think that there are enough actual things to
do.

--
Mathias Schindler
Projektmanager
Wikimedia Deutschland e.V.
web: http://www.wikimedia.de
mail: mathias.schindler at wikimedia.de
jabber: mathias.schindler at gmail.com

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