Ancillary Copyright in Germany: From Opt-out to Opt-in on Google News
News from Google News: the most popular search engine in Germany has now come up with a new solution for dealing with the increased amount of legal uncertainty caused by the infamous Leistungsschutzrecht or ancillary copyright for press publishers. It will require German news publishers to explicitly ‘opt-in’. This means that if a publisher wants to continue to be displayed in Google’s ‘News’ vertical search option, he will have to consent before 1 August, the date the ancillary copyright enters into force. Content from publishers that have not opted in will not be displayed in the search results anymore.
Whereas publishers have always had the technical possibilities for not being indexed by, e.g., using robots.txt or meta tags, this policy will give them another option for deciding whether their online publications will appear in Google News or not. This point is crucial: this option is available for them in relation to one online news aggregation company only, Google. This could have important implications for the broader digital economy.
Consider the following scenarios. First, whereas publishers opt into Google’s news aggregation service on Google’s terms and conditions, the legality of other online services will be judged against the faulty Leistungsschutzrecht. Questions on, e.g., the length or display of snippets will be judged in context of the legal uncertainty caused by the new ancillary copyright for any online service other than Google News. This could lead to inequalities in the market and disadvantage innovative challengers. Smaller companies would not be in a position to cope with the administrative burden of an opt-in system. Second, and closely related to the first point, Google’s economic clout means that it acts as a trendsetter in the market. As soon as publishers decide to legally challenge smaller news aggregators on the basis of the newly enacted law, there is a risk that courts will consider Google’s new policy as a best practise helping to achieve compliance with the law. To be clear, the new legislation does not require such an opt-in mechanism but it will be difficult to not take into account an established market practise during legal proceedings.
This is not to criticize Google’s new policy. It is a targeted response to a law that was primarily targeted at the company. There is a reason why the term ‘Lex Google’ is at least as popular as the formal name Leistungsschutzrecht. The concerns articulated above correspond to what CCIA has outlined from the beginning: the ancillary copyright risks cementing strong positions in both online publishing and online news search. In addition, the implementation of Google’s new policy will be interesting with regard to one further aspect: judging by the amount of opt-ins, the mutually beneficial relationship between publishers and online services might become clearer. Going a step further it could even become clear who benefits from whom to a larger extent.
As a reminder, the general aim of the German ancillary copyright was to extend protection to automatically generated snippets that are widely used by search engines and other news aggregators in their search index. In a last minute change, however, the legislator has decided to exclude ‘smallest’ (kleinste in German) text excerpts from the scope of the law. Accordingly, a law that was initially meant to put snippets under copyright protection now tries to somehow exclude ‘smallest’ text excerpts, i.e…. snippets? This, together with Google’s new policy, shows how unnecessary and ridiculous the law is.
Jakob Kucharczyk is Director in the Brussels office of the Computer & Communications Industry Association.