Can you violate someone’s rights by not infringing their rights? According to some German press publishers, this is precisely the case after Google’s announcement that it will no longer display snippets and thumbnails from content owned by publishers who are represented by VG Media, a collecting society. This follows the introduction of the Leistungsschutzrecht, a new ancillary copyright, by the German Government in 2013 (which this blog covered here, here and here). Under the new ancillary copyright law, the display of news snippets in search is restricted — a departure from international copyright law, which provides for a right to quote. VG Media, who represents some of the press publishers that most vocally lobbied for the law, has gone as far as saying that the search provider is now ‘blackmailing’ them.
In light of this serious accusation, let’s look at the facts. The German Leistungsschutzrecht was passed last year granting press publishers an exclusive right over the use of text excerpts by online services. News publishers interpret the law to encompass snippets (there is legal uncertainty), small fragments of text displayed by search engines usually beneath a hyperlink to provide a better user experience. In an effort to exercise this right, the VG Media sued Google, DTAG, GMX, 1&1 and Yahoo! and others over the display of snippets that contained content from publishers that belong to the VG Media collecting society. The last point is important: some of the most popular news publishers in Germany like FAZ, Spiegel, Sueddeutsche, Die Zeit as well as many other news sites decided to not exercise their Leistungsschutzrecht. In fact, they explicitly want to be listed in search results to benefit from the traffic they get from Google and other online services.
As a consequence of this lawsuit, some German online services, like T-Online and GMX, have decided to throw VG Media content out of their search results completely. Google has decided to continue the display of hyperlinks to VG Media content but without snippets. This change will become effective as soon as 9 October. According to VG Media, this move amounts to an abuse of dominant position since it claims Google’s aim is to extract a free use of snippets. Interestingly, Markus Runde, VG Media’s director has stated that the German competition authority, the Bundeskartellamt, will have to scrutinize this behaviour.
What Runde did not mention is that the Bundeskartellamt has already done so, at VG Media’s own instigation. In this report from August this year, the competition authority stated that not wanting to pay for the display of search results, gives no reason to suppose an abuse. The reason is very simple: the Leistungsschutzrecht does not force anyone to acquire a license for the display of snippets. In plain language, if you don’t want (and perhaps don’t need) a license for the display of snippets or thumbnails, nobody can force you to pay for one. If you don’t display a snippet, it is even more obvious that you wouldn’t need a licence and that you wouldn’t pay for something you are not using. As simple as that.
So how should one deal with the accusation of Google ‘blackmailing’ publishers? In light of the absurdity of that claim, the only explanation is that VG Media has realised that it has shot itself in the foot with the Leistungsschutzrecht it spent so much time lobbying for. As a result of the law: (a) links to the content of VG Media publishers disappeared from some online services completely, (b) Yahoo! brought a constitutional complaint against the law, (c) Google simply decided not acquire a license for a right it would not use, and (d) above all, the German competition authority says this choice is all ok and legal! In fact, in an interview that came out at the end of last week, the Chairman of the German competition authority, Andreas Mundt, clarified that from a competition law perspective, there is no requirement to pay for the use of snippets. He also reiterated that this has been communicated to VG Media before.
For VG Media this must be reminiscent of a ‘snippet’ from Goethe’s famous poem Der Zauberlehrling: “Die ich rief, die Geister, Werd’ ich nun nicht los.” [Own translation: “The spirits I have called, I now cannot get rid off”].