One may wonder whether we are at the beginning of a ‘snippet saga’ in Germany. The Copyright Arbitration Board of the German Patent and Trade Mark Office (DPMA) recently recommended that snippets, i.e. small text excerpts used by search engines and online aggregators below hyperlinks, can comprise exactly seven words. This suggestion is part of the DPMA’s recommendation to privately settle a dispute between online services and press publishers over Germany’s ancillary copyright, also termed the ‘snippet levy’. Should a court confirm this recommendation, snippets which go beyond this limit of seven words would in theory have to be licensed from news publishers.
This rather peculiar recommendation has less to do with Germany’s world-famous inclination to precision, and far more with the exact opposite: the country’s vague provisions in the Leistungsschutzrecht, the ancillary copyright for press publishers. While the law initially tried to put snippets under copyright protection, a last-minute change to the law carved out “individual words and smallest text excerpts” from its scope. Naturally, the views on what constitutes a “smallest text excerpt” diverge widely, which caused most online services, including search engines like Google and Yahoo, to simply not display snippets anymore. In the case of Google, news publishers subsequently argued that Google was abusing a dominant position by not displaying snippets (i.e. by not violating their rights) and forcing them into giving licenses away for free. The German competition authority recently dismissed this claim as no company can be forced to acquire a license for something that is not being used (see here for more details).