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German MPs back 'Lex Google' copyright reforms but expert predicts years of legal uncertainty

New copyright laws backed by German MPs on Friday will create years of legal uncertainty in the country, an expert has said.01 Mar 2013

In a vote in the Bundestag, Germany's parliament, a majority of MPs voted in favour of making changes to the country's copyright framework. The regulations, dubbed 'Lex Google', will require the internet giant and other search engines, as well as content aggregators, to pay publishers in order to display snippets of their content in some circumstances.

The Lex Google reforms that were approved contain an amendment (6-page / 339KB PDF) to previous drafts to allow search engines and content aggregators to display "single words or very small text snippets" without having to pay publishers.

Munich-based copyright law specialist Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said that it was unlikely that the Bundesrat, the upper council of Germany's parliament, would object to the new laws and that they would therefore come into force. He said, though, it could take years for Germany's courts to define what 'very small text snippets' means in practice.

"No one knows what that phrase means and where the threshold lies between a 'very small text snippet' that is legal and all other use of news that are now subject to the new regulation," Barabash said. "It might take a couple of years until the courts produce some decisions that provide guidance on that point."

"What will happen in the mean time will be that publishing industry licensing bodies will make some money from the reforms. They will likely send out warnings or cease and desist letters and ask for licenses. I would imagine that most companies that receive those letters would decide to pay the license fees, since going to court to challenge whether their use of content is a 'very small text snippet' would be costly and require a lot of effort. Therefore there will probably be a significant wave of semi-legal warning letters issued to try to make some cash because of the unclear regulations," he said.

Barabash said that lower instance courts in Germany are due to rule in some cases on the issue of content snippets and licensing later this year. However, he said that until the issues reach the

Federal Courts of Justice in Germany there will be a lack of clarity over the practical interpretation of 'very small text snippet' because of the prospect of inconsistent rulings from the lower courts on the issue.

The new section to the German Copyright Act would provide the "producer of news materials" with the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes".

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, although very small snippets of content could be utilised by the search engines or content aggregators prior to that. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".

Google had fought the introduction of the reforms and launched a marketing campaign against the plans late last year. Other organisations, including website browser manufacturer Mozilla, have also expressed reservations about the impact of the reforms. However, publishers in Germany have been advocates of the changes.