Later this month a proposed new section to the German Copyright Act is due to be discussed in Germany's parliament, the Bundestag. The new section, if introduced, would provide the "producer of news materials" the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.
Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".
Munich-based copyright law expert Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said that publishers have raised two arguments in favour of the changes.
"The publishers no longer want to see their actual work and their performance being 'pirated' by Google and other service providers," Barabash said. "The argument is that all the work is done by the publishers and that Google et al. are making money by using this work free of charge."
"The second argument is a legal one: according to the German Copyright Act two different kinds of rights exist: the copyright belonging to the author of the work, such as an artist or musician, and the so called 'ancillary rights' for people involved in the creation of a copyrighted work but not providing the 'creative' part of the service, such as a music producer or director of a movie. Such an ancillary right does not exist for publishers. This legal protection gap is the second argument behind why the publishers want the introduction of this similar ancillary right for themselves."
Barabash said that if all the parliamentary hearings run "smoothly" the new law could be in force by May or June next year.
The expert said that it was his view that search engines "help" rather than hinder publishers by driving "further visitors and traffic" to their websites. He added, though, that other news platforms that do "take over some content from the publishers" often to the detriment of publishers.
Barabash said that it was unlikely that search engines like Google would reach a voluntary settlement with publishers over the issue of paying a licence to display links to their content. He added that even if a settlement is reached the legislation would still require that authors of the copyrighted material are provided with a "reasonable share" of the money.
Barabash said that news publishers that produce their own content as well as aggregating news from other sources, such as from foreign agencies, could be caught by the provisions.
He said, though, that news websites will not be prevented from reporting stories based on information reported by other publishers under the changes to the law.
"German copyright law provides an exception to copyright which allows copyrighted work to be used without permission without that action constituting an infringement under certain circumstances," Barabash said.