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German Parliament Passes News Licensing Law, but Its Future is Unclear

BY Miranda Neubauer | Friday, March 1 2013

Protest against licensing law in Berlin (Flickr)

The German Parliament has passed a watered-down version of a government-sponsored proposal that could require some search engines and news aggregators to pay a license fee to republish news content.

The bill now goes to the upper house of parliament. And even if it takes effect, it remains unclear how much power and meaning such a law aimed at applying German copyright law to Germany-based websites and services can have given the global nature of the World Wide Web. Will Germans suffer if they are blocked from using certain news apps? And how, if at all, can the law apply to a website based in the United States republishing or aggregating news content from a German news website? The law seems to be another symptom of the inherent dissonance between national laws and business models and the global Internet.

The original proposal, backed by news publishers, targeted Google News with a requirement that a license fee was necessary for displaying news snippets, German news reports indicated. But after a hearing by the parliament's legal committee earlier this week, the language of the proposed law was changed to include the following passage: "So that search engines and aggregators can briefly describe their search results without infringing on the rights of the rightsholder, the law should not apply to individual words and the smallest text excerpts."

Wiggle room is rare in German copyright law. An Indiana University Law School research paper notes that "German law includes no broad statutory concept of 'fair use' or 'fair dealing.' German Law on Copyright and Neighboring Rights includes numerous exceptions, but they are usually narrowly crafted to specific circumstances and specifically defined activities."

As techPresident has previously reported, large German news publishers back the law because they see it as a way to make sure that they are compensated for reuse of their copyrighted news content for commercial purposes. Critics, including Google, said the law could harm the link ecosystem of the Internet, lead to legal uncertainty and harm innovation in Germany. Google led a public "Defend Your Net" campaign with a YouTube video and an effort to show opponents to the law populating a map of Germany. While German news outlets characterized the changed language as a way to exempt Google, a Google Germany spokesperson today still expressed opposition to the law to Reuters.

"The law is neither necessary nor sensible. It hampers innovation and hurts the economy and Internet users in Germany," a spokesperson is quoted as saying.

The association of freelance journalists was also critical, writing, "Google wins, freelance journalists lose."

The association of German journalists was also opposed to the law. It criticized the law for not taking into account the interests of the authors of the news content or set up any kind of compensation process for journalists.

In the German political landscape, the law was mainly supported by the coalition of German Chancellor Angela Merkel, comprising the Conservative CDU/CSU and the free-market Liberal FDP. The law was opposed by the opposition Social Democrats, the Greens and the Left. And the support for the law was not unanimous. The youth organization of the CDU had joined its counterparts among Social Democrats, the FDP, the Greens and the Pirates in opposing the law. Skepticism and opposition also came from some FDP MP's and MPs from the CDU/CSU, including Dorothee Bär, chair of Cnet, the net policy working group of the CSU, the Bavarian sister party of the CDU, and MP Peter Tauber, spokesperson for Cnetz, the net policy association of the CDU, which is also opposed to the law.

Ahead of Friday's vote, there was also an online petition by CDU/CSU supporters to express their opposition against it, which received 86 signatures.

Before and during the vote, a small protest led by the Netzpolitik blog took place in Berlin. The protesters carried signs with messages such as "Intellectual Properly Law: Reform it instead of Cementing it," "The law is not a net-free space," "A licensing law for demonstration signs," "Our lawyer will clear up if we can blog this," and "For they don't know what they are doing," a Biblical allusion and allusion to the German title of the film "Rebel Without a Cause" (... denn sie wissen nicht was sie tun.) A counter-protest sign by news publishers on a van read "No to commercial content-theft."

Earlier this morning, the law was approved with a CDU/CSU and FDP majority, 293 to 243. Tauber and Bär were the only MPs from their parliamentary group to vote no, along with four members of the FDP. Two CDU/CSU members abstained. There were 83 MP's absent from the vote, and freelance journalist and blogger Wolfgang Michal noted that many of the missing were prominent members of the opposition parties, in effect making the passage of the law possible, because they would have had a majority if they had been present and all voted no.

Screenshot of vote overview from German public broadcaster ZDF

The law still could be blocked by upper house of German Parliament, the Bundesrat, which represents the 16 German state governments and the Social-Democratic-led governments have a majority to block the law. Der Spiegel reported that it was unclear whether the governments were unified on the issue, with Lower Saxony expressing its opposition to it, and Northrhine-Westphalia and Rhineland-Palatinate proposing their own compromise. Michal suggests that the opposition is playing for time, given the parliamentary election scheduled for the end of September, and that opponents will take a stand and the let the law "fester" in the arbitration committee in the spring and late summer. iRights.info explains that the Bundesrat can technically only delay the law, but that the law could theoretically fail if the legislative process isn't completed before the election.

Der Spiegel notes that even with the changed language, the law could still apply to news aggregators and apps like Flipboard. The creator of German blog aggregator Rivva wrote that even though he was able to live with the language in the new version, he still feared legal risk. For that reason, he explained that he had already reduced the length of the site's preview text to 160 characters.

Der Spiegel notes that the law does not specify the exact length of allowed text excerpts. As an earlier Der Spiegel article noted, "Here is where the fun begins. How long, in effect, is short? When does short become too long?" That determination, Der Spiegel writes, would likely be left up to the publishing companies or be specified through litigation. Der Spiegel also notes that many of the problems facing German news publishers have to do with lack of effective mobile ad formats and low prices for online advertising, rather than aggregation. Der Spiegel also notes that news sharing on social media sites like Facebook is likely not affected, since that is done manually and is not the result of a technical algorithm affecting mass quantities of content, and would be protected by the citation right.

In a statement, the association of German news publishers praised the passage of the law, even though it didn't take into account all of their demands. The law is not associated with an "automatic utilization right," the statement says. "Rather, the publishing houses are free to make their own managerial decision as to what they want to arrange with search engines and aggregators that want to use their content for commercial purposes."

For the association of companies and organizations opposing the law the next step is clear.

"Last resort Bundesrat," the group wrote on its Facebook page, referring to the upper house of parliament.