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German Law to Set Licensing Fees for News in Web Search an Election-Year Political Football

BY Miranda Neubauer | Tuesday, March 26 2013

The upper house of Germany's bicameral legislature has passed a controversial bill that would require search engines and content aggregators to pay a license fee to news publishers for republication of some news content.

But the bill was changed so drastically between when it was introduced and when lawmakers with varying degrees of expertise on Internet issues were done modifying it that news publishers have said they won't use its provisions if it becomes law, and the party hoping to knock Angela Merkel's Christian Democrat-let coalition out of government is campaigning on a promise to reform the legislation even though they themselves allowed it to pass through the legislature.

In short, a German effort to reform the business of news has done little more than generate a few headlines of its own — placing Internet policy in one of Europe's cornerstone economies at the mercy of election-year politics.

Merkel's coalition passed the bill out of the Bundestag, Germany's lower legislative house, earlier this month, against the protestations of opposition Social Democrats and a contingent of Internet freedom advocates sprinkled throughout both government and opposition. The legislative fight over the bill formed strange alliances between free-speech wings in several of Germany's major parties, lawmakers who found their voice following a vigorous lobbying effort by Google and a coalition of activists pushing for unrestricted freedom of information on the web — or, as the idea is also known, liberal copyright policies that favor users and aggregators over content creators.

Germany's copyright law currently does not allow for fair use, instead creating a series of narrow loopholes. The solution in the case of the licensing-fee bill took the same shape: an out for "individual words and the smallest text excerpts" that some observers said left Google largely untouched. (Of course a spokesman for BDZV, the association of German news publishers, gave a flat "no" when asked if Google was, in his opinion, already compliant with the provisions of the bill.)

The resulting bill has left a lot of people unhappy. Google, of course, is still against it. People in the start-up sector characterized the vote as a "decision against a German IT-startup culture" because of the gray area it would create for business with more new ideas than liquidity to cover legal fees. Even some of Germany's largest news outlets, including Der Spiegel, have gone out of their way to say they won't use the law to prevent other sites from publishing its headlines or excerpts.

Internet activists who came to Google's defense in the service of free access to information are now arguing whether their methods are effective, with some writing that they failed to pitch their cause to a wider public and others countering that the bill is far less onerous on its way out of parliament than it was on its way in.

And the Social Democrats, who hope to unseat Merkel's CDU as the centerpiece of government in September elections, are seeking to turn the bill into a campaign issue.

Peer Steinbrück, a Social Democrat, has vowed that he would overhaul the law if he wins an election this fall and takes Germany's chancellorship from Merkel.

But opponents of the law are also criticizing Social Democrats for not taking advantage of their majority in Germany's upper house, where lawmakers are appointed by regional governments rather than directly by voters, to bury the bill in committee. The left-leaning outlet Taz noted that Social Democratics representing North Rhine-Westphalia in the upper house — a region that's home to news publishing companies including Bertelsmann and WAZ — could have referred the bill to an arbitration committee, where it would have sat quietly until after the September elections.

Instead, Social Democrats from that state and two others passed a motion that criticizes the law as "badly crafted," criticizes the government for rushing the bill through, and calls for the next government to amend the bill in the next legislative period.

Then Steinbrück defended the choice not to refer the bill to committee, telling Zeit Online that it did not make sense to continue debating what the Social-Democrats view as a flawed bill and blaming Merkel's coalition for passing it out of the legislature's other house, the Bundestag, in the first place.

"Suddenly those who have announced that they will fundamentally change the law when they are in power are being denounced," he said.

But the Greens, the Social Democrats usual coalition partner, don't seem to be buying it.

"It is absolutely incomprehensible to me how the SPD Hamburg can submit a motion criticizing the weaknesses of the law, but then doesn't in logical consequence arrange for the law to be stopped in the Bundesrat," the media policy spokesperson for the Greens, Tabea Rößner, told Zeit Online.

The bill now heads to the desk of German President Joachim Gauck for signing. Barring constitutional questions, it's rare for a president not to sign a bill passed up from the legislature.

Facing this reality, some commentators have turned to the task of deciphering what exactly the complex bill — and the political chaos it comes from — means for Germany, both politically and in terms of the Internet.

After making its way through the legislative sausage-making machine, blogger Andre Vatter suggests, it's pretty easy to illustrate who would walk away a winner if the bill was signed into law. In his pie chart, blue is Axel Springer, the company that publishes the influential mass-circulation tabloid Bild:

(The other colors represent journalists, bloggers, readers, start-ups, and democracy.)