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Views of legal professors add weight to Google campaign against German publisher levy plans, says expert

Google's opposition to proposed changes to copyright law in Germany is backed by the views of German legal professors in the areas of IT and copyright, an expert has said.29 Nov 2012

Earlier this week Google launched a public campaign against a proposed new section of the German Copyright Act which would see search engines forced to pay publishers to display snippets of stories when those snippets are less than a year old.

Munich-based copyright law expert Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said that Google's campaign was "pretty clever" and that a video it has produced "containing the most important news searches from the last months together with general searches performed by users" had been viewed approximately 80,000 times in two days.

Barabash also said that Google's campaign provides information on the proposed changes to law from a "pro-Google" point-of-view and that the company provides users with a link whereby they can "contact the law makers and complain about the planned regulations".

The expert said that he believes Google chose to launch a pre-emptive public campaign to prevent the draft laws being enacted because of the difficulty and time consuming process of trying to get laws that are passed repealed. In addition he said that he thinks the company may have turned to the public for help because its own "internal lobbying activities" have failed to derail the proposals.

"Bringing in the public opinion and therefore putting additional pressure on the government and the Bundestag would be the next logical step," Barabash said.

However, Barabash said that the public campaign on the issue could not be compared to the public outcry against an international intellectual property rights treaty that was witnessed earlier this year.

In July the European Parliament voted to reject the Anti-Counterfeiting Trade Agreement (ACTA) after taking the view that the text was "too vague, leaving the room for abuses and raising concern about its impact on consumers' privacy and civil liberties, on innovation and the free flow of information." The Parliament's vote followed public protests against ACTA on the internet and in the streets, where thousands of people gathered in cities across Europe to protest against the impact they believe ACTA would have on internet freedoms.

Barabash said, though, that because the general public would not be "directly" affected by the planned reforms to the German Copyright Act the issue could not be compared to ACTA.

"The news will still be there, even if some news aggregators will fail to provide the information," he said. "As for ACTA, the personal data of everyone was affected immediately without exceptions. This is definitely different with the new regulation: there will be no immediate effect to the general public."

Barabash also said that it was his view that the German public would not be as keen to back "some American company" which it said had come in for criticism in the country over its "tax advantage policy" and because of cynicism over the way it treats the personal data of users of its services.

Whilst the German Ministry of Justice said that it was "surprising" that "a dominant player in the market" had tried, with its campaign, to "influence and monopolise ...public opinion making", Barabash said that Google's bid to have the draft reforms quashed were aided by the views (8-page / 78KB PDF, in German) of the Max-Planck-Institute for Intellectual Property and Unfair Competition Law.

"The Institute is the biggest and probably most important research institute for that kind of legal science," Barabash said. "In a statement concerning the new regulation it said that 'the need for such law has not been proved so far' and that the German Government 'thus lacks any basis to adopt the proposed rule'. The people who signed the statement are the crème de la crème of German legal professors in the area of IT and copyright issues. So even if Google’s campaign might have only minor chances for success, together with other campaigns and statements it is still possible that the law will not be passed."

The proposed new section to the German Copyright Act would, if introduced, 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".

The proposals are set to be debated in the Bundestag, Germany's Parliament, for the first time on Thursday. Barabash said that most German laws are passed after their third Parliamentary hearing but that some are passed following a second hearing.

In a blog earlier this week, website browser manufacturer Mozilla said that the proposals "may be bad for users and the web".

It said search engines could stop indexing publishers' news stories in their search rankings making it "more difficult" for news to be found. It also said that the proposals could also impact on competition because "new entrants" would not be able to pay licence fees to publishers. This could "unintentionally" favour "well-funded players who can pay," it said.

"Search engines, in their purest form, foster this information flow allowing people to connect with information and news that may be worlds away from them," Mozilla said. "Impediments to this information flow, be they commercial, political or even legal, restrict the real benefits the Web has to offer."