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COPYRIGHT WITHIN THE BORDERS OF 1945.

GOOGLE - We have to stay outside

German discussions about copyright are, well, they are very German. As a country with about 80 Million inhabitants all speaking an obnoxiously difficult language the rest of the world tends to not look too closely on our internal idiosyncrasies.
A couple of hours ago, the Bundestag, the lower house of German parliament, passed a bill that has been dubbed ‘Lex Google’ and carries the long-winded German name ‘Leistungsschutzrecht für Presseverleger’ (Property rights for news publishers).
Unfortunately most international newspapers and media never did a full on explanation of what the LSR is actually about.
So, let’s try to do it here.

A bit of background: Germany’s laws on copyright differ quite a bit to those in the English-speaking world. Strictly speaking, there is no such thing as a copyright. German legislation first and foremost protects the rights of the creator of cultural goods or so-called ‘fine arts’ with something that is called ‘Urheberrecht’ (creator’s right). (More detailed information on the legal intricacies and the difference between ‘fine’ and ‘applied’ art can be found on Wikipedia). This law basically states that one cannot lose the right to be a creator.
But because this doesn’t make much sense in a world were intellectual property rights are sold, there is a possibility to sell your work, with something that’s called ‘Verwertungsrecht’ (exploitation rights). It basically allows the creator to license the rights to publish, sell and resell the content he originally created. However, you have to be granted these exploitation rights explicitly and in written form, which leads to most low level artists being employed to be forced into adhesion contracts forcing them to give up all future rights of exploitation of their own work.
There are, of course, a lot of exceptions to this rule, including, for example, educational use, daily news reporting, content produced during public speeches, use in databases, etc. The most notable exception is probably the right to cite, which allows for quoting and using parts of works created by others if the source is mentioned. And this is where the trouble started. Or rather, one should say, this is where publishers started the trouble. Their problem is this: Google, bloggers, news aggregators, social networks, they all use this right to quote passages published on the internet to illustrate, inform, comment and do what reasonable people do with information that’s freely available. And some of them are even earning money with it. Not directly, of course, mostly via advertising and sometimes via paywalls or donations. But, in the end, they are all earning money with works which are not created by them, works which are created, in many cases, by online news sites which in turn are run by publishers who tend to be in quite a pickle since the internet got so big.

So, in March 2012 the conservative government announced that it would start a legislative initiative on drafting a bill that would protect publishers of news from having their content exploited without being explicitly allowed so.
In the final bill passed today this describes the use of ‘snippets’, a part of text or images of the original work which is not legally defined yet. These snippets can not be used for commercial and systematic exploitation of works (in this case news) published by a third-party. Other users, commercial or private, are exempted from this law, including bloggers, voluntary organisations or people doing voluntary work, lawyers, and lobby organisations.
On the other hand, in a last-minute change (two days before the bill was passed) it was decided that ‘single words’ and ‘very small excerpts’ such as headlines can still be used for putting a link into context.
To make things even more absurd, the law also only applies to works that are not older than a year, everything else will still be protected by the freedom of speech.

On practical level this means that, since the term ‘snippet’ is not legally defined, it leaves it open for interpretation, negotiation and, plainly speaking, opens the door to a metric shit-ton of lawsuits. And, because it still possible to put links into context using ‘very small excerpts’, something that was specifically added to save search engines the hassle of paying money to publishers, the ‘Lex Google’ is basically now only a ‘Lex advocati’.

Finally, since quoting is still allowed and legally protected, posting a link on a social network (for example on Facebook which will always include snippet to the link posted) may still be exempted. This is especially true since the law is meant to focus on sites which republish third-party content via automated methods, whereas the links posted on social networks are still mainly posted and spread manually – although, this is also something that lacks clarification.

So what’s the baseline here? Well, for one thing, Google basically won the fight. The law was lobbied for and by Germany’s biggest news publishing houses specifically to get a slice of the cake that Google earns via advertising revenues. Now, that the law makes it possible for search engines to work their way around the ‘snippet’ problem, they will still be able to keep up their news aggregation services and make their money.

On the other hand, Google is very much the only one who profits from this last-minute change. Making the ‘snippets’ a thing that is not legally defined, the LSR offers lawyers the option to make money by using another very German practice: sending out legal warnings. These warnings usually come bundled with a threat for legal action, and have no consequences in most cases. But they are scary, and in fact, scary enough for many to pay the barrister some random fee that is little more than protection money and stop doing whatever they were accused of doing.

So yes, this bill is bad. It’s not as bad as it could have been, and it still has to pass the German upper house, the Bundesrat, but it is so vague and, in the end, so meaningless, that passing it can only be seen as another low point in Germany’s to apply law and order to ‘teh internetz’.

Further sources (German only):
The final draft of the bill: http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/RegE_LSR.pdf?__blob=publicationFile
German ‘copyright’ law: http://www.gesetze-im-internet.de/urhg/BJNR012730965.html#BJNR012730965BJNG004301377
Final changes of the bill: http://dip21.bundestag.de/dip21/btd/17/125/1712534.pdf
A long winded explanation by the German government of why the law is necessary: http://dip21.bundestag.de/dip21/btd/17/117/1711792.pdf

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This entry was posted on 01/03/2013 by in Polemic..

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