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<body class='hmmessage'><div dir='ltr'>Hi Mathias, <br><br>Thanks for the update.<br><br>This reminds me of a suggestion I heard many years ago that the recording industry would require people to pay a dime every time that they whistle a copyrighted tune.<br><br>I support reasonable use of the principles of copyright. I agree with you that this particular proposal doesn't feel like it's a reasonable use of the time and money of countless stakeholders and government officials.<br><br>Pine<br><br><div><div id="SkyDrivePlaceholder"></div>> Date: Thu, 31 Jan 2013 16:32:27 +0100<br>> From: mathias.schindler@wikimedia.de<br>> To: advocacy_advisors@lists.wikimedia.org<br>> Subject: [Advocacy Advisors] [FYI] German Leistungsschutzrecht bill in parliament<br>> <br>> Hi,<br>> <br>> I am forwarding an article I wrote at<br>> http://searchengineland.com/german-leistungsschutzrecht-146826 about<br>> an expert hearing in the German parliament yesterday on a proposed<br>> change of copyright:<br>> <br>> Yesterday, the Judiciary Committee of the German Bundestag — Germany’s<br>> national parliament — held an expert hearing on a proposed<br>> “Leistungsschutzrecht” law for news publishers. The law, known as<br>> “ancillary copyright” in English, would require search engines and<br>> others — perhaps even Facebook, Twitter and individual bloggers — to<br>> pay news publishers if they link to or even briefly summarize news<br>> content.<br>> <br>> The hearing didn’t result in a vote. It was the next step in a process<br>> that may lead to Leistungsschutzrecht becoming law or not. Below, some<br>> background on what happened at the hearing, along with some analysis<br>> from my perspective about the law.<br>> <br>> Before I go further, an important note. I am not a lawyer. English is<br>> not my native tongue, and I am not a trained journalist. Please do not<br>> expect legal expertise, journalistic style or proper English. I do not<br>> speak on behalf of anyone else. This is my personal opinion. But I<br>> have I’ve been tracking “Leistungsschutzrecht für Presseverleger”<br>> since 2009, as part of my work for Wikimedia Deutschland, as we’ve<br>> tried to figure what impact it might have on us or others.<br>> <br>> Background About Leistungsschutzrecht<br>> <br>> Under the current copyright law in Germany, it is perfectly legal to<br>> operate a for-profit search engine that contains search results from<br>> German news publishers. It is legal to allow users to enter search<br>> terms and to display search results that contain a link to pages<br>> matching the search terms. It is also legal to add a snippet to this<br>> link and present a small piece of information that might help the user<br>> understand if this is a meaningful search result you might want to<br>> click on.<br>> <br>> The draft Leistungsschutzrecht bill (known as “LSR”) was formally<br>> proposed by the German government coalition in August of 2012 and<br>> passed to the German parliament for action. That action will involve<br>> several readings and committee reviews, of which yesterday’s hearing<br>> was only one.<br>> <br>> If this bill is enacted as-is, search engines would no longer be<br>> allowed to display snippets unless they had received permission first.<br>> This is very crucial aspect of this Leistungsschutzrecht. It is not<br>> meant as an opt-out tool that allows you to operate a search engine<br>> unless the publisher objects and has his web sites removed. Quite the<br>> opposite, it is up to the search engine operator to ask for permission<br>> first.<br>> <br>> LSR would grant news publishers an exclusive right to “make public”<br>> news content for one year, though what exactly “news content” would be<br>> is unclear. Part of the proposed law defines this as essentially doing<br>> what the press “usually does,” explicitly mentioning informing,<br>> offering opinions and entertaining.<br>> <br>> After the year exclusivity period had passed, the right would be<br>> transferrable. There are provisions to ensure authors or other right<br>> holders are not disadvantaged. Other provisions would extend rules<br>> specifically aimed at requiring search engines and ”commercial<br>> providers of services who process content respectively” to seek<br>> permission for use.<br>> <br>> The bill does not have requirements on payments. It is quite possible<br>> that in an LSR world, a news publisher grants permission to a search<br>> engine for free use. It is also possible that the press publisher pays<br>> the search engine in order to get included into a web site. In any<br>> case, the default switch is set to, and I am going to use a German<br>> term here you might remember from the TV show Hogan’s Heroes:<br>> VERBOTEN.<br>> <br>> How Would It Work? Unclear<br>> <br>> There are many unanswered questions and uncertainties about how LSR<br>> would work. For example, how does a search engine how whether a<br>> something is a news story? The answer is simple: it doesn’t.<br>> <br>> A news story published by a journalist on his personal web site and<br>> meant as an example of his skills will not be covered by the LSR,<br>> whereas the same exact text on the web site of a publishing house will<br>> be covered by the LSR.<br>> <br>> It is a matter of open debate whether blogs will qualify as press<br>> products. A safe approach for a search engine operator will be to<br>> assume that all content is press content until evidence to the<br>> contrary surfaces.<br>> <br>> Next question: Why don’t publishers simply use robots.txt to exclude<br>> google from listing them? The answer is, again, simply: A large share<br>> of revenue comes from showing ads to visitors who come in via Google<br>> and Google News. There is no economic point in shutting down one of<br>> your largest sources of income. Publishers want to have Google<br>> continue sending them customers and at the same time get paid for it.<br>> <br>> Who doesn’t want to have the cake and eat it, too? Some publishers<br>> have tried to present robots.txt as a binary measure that is incapable<br>> of preventing the indexing of only parts of a web site or the<br>> selective exclusion of services like Google News or the ability to<br>> disable snippets. Their objections have been disproven by (LSR<br>> opponent and journalist) Stefan Niggemeier.<br>> <br>> Yesterday’s Expert Hearing<br>> <br>> Yesterday’s hearing was, as best we know, the only expert hearing that<br>> will be held as the proposed law is considered. It lasted for three<br>> hours. It allowed members of the Bundestag to ask questions to nine<br>> experts who were picked by the five parties in parliament (larger<br>> parties got to allocate more expert slots). These experts were allowed<br>> to submit written statements before the hearing (you can find them in<br>> German here).<br>> <br>> Parts of the hearing were easily predictable. Members of the political<br>> opposition (which is against the proposed law) had picked scholars to<br>> speak against it. The governing parties had picked experts supporting<br>> the law. Questions from one party to their own experts were meant to<br>> create the opportunity for these experts to elaborate on their<br>> arguments in favor or against the Leistungsschutzrecht.<br>> <br>> While it was an expert hearing, it wasn’t focused on technological<br>> expertise. Instead, it was more a scholarly or philosophical<br>> examination, of how such a law might fit into the current framework of<br>> constitutional law, European Union law the current dogmatic style of<br>> copyright.<br>> <br>> Whenever a technical question was raised, the answers were vague,<br>> evading or simply hilarious.<br>> <br>> A representative from the publishers’ associations in favor of the law<br>> kept on repeating a demand for technical language with a much more<br>> complex vocabulary to express conditions such as temporal, topical or<br>> size restrictions, payment requirements and other conditions.<br>> <br>> So far, he has been unable to present a viable way how this could be<br>> implemented and he has failed to explain the obvious: the language he<br>> proposed would only constitute an invitation to negotiate on the<br>> terms. It would not substitute the negotiations itself, bringing us to<br>> the argument of a huge and crippling bureaucratic nightmare or<br>> opt-in-rights negotiations.<br>> <br>> All experts in this hearing agreed that this law will create an era of<br>> legal uncertainty, and it will require a series of lawsuits to create<br>> enough case law to see who will actually be within the sights of the<br>> LSR. The time span mentioned was five years or more. Until then, any<br>> professional legal advisor would be required to warn his clients<br>> against innovating or investing in search engine projects in Germany<br>> because of such uncertainty.<br>> <br>> Till Kreutzer, a legal expert and vocal LSR opponent who was among the<br>> nine invited experts was correct to point that out. He’s been working<br>> on this topic since it first emerged as a proposal by the publishers’<br>> association in 2009. He and several other experts agreed during the<br>> hearing that the current LSR design will most definitely favor large<br>> corporations over smaller startups and smaller publishing houses and<br>> that the economic effects of this law will strengthen the position of<br>> both Google and companies like the Axel Springer publishing house.<br>> <br>> Beyond Google: Twitter & Facebook?<br>> <br>> At one point, parliament member Burkhard Lischka, of the opposition<br>> Social Democrats party, asked expert Christoph Keese of the Axel<br>> Springer publishing house if the proposed law would apply to news<br>> content that is shared on Twitter and Facebook.<br>> <br>> Keese ducked the question. That’s probably because he, like most,<br>> doesn’t know. No one will for certain until a court case happens.<br>> <br>> The Law Has No Clothes?<br>> <br>> A key point during the hearing, to me, was when the parliament member<br>> and committee chair Siegfried Kauder, of the Christian Democrats party<br>> that’s part of the ruling government coalition, stated that after<br>> hearing from the experts, it seemed that the law was unlikely to<br>> actually produce new income for news publishers. Given this, he asked,<br>> why did it make sense to still pursue it?<br>> <br>> Despite Kauder’s party being in favor of the law, he’s opposed to it<br>> but unable to actually stop it. His statement resulted in some<br>> laughter, perhaps because it was an “emperor has no clothes on”<br>> moment. So many seem to understand the absurdities in the proposed law<br>> that it’s almost humorous.<br>> <br>> Next Steps<br>> <br>> What happens next? There might be political pressure to have another<br>> expert hearing, this time with experts from the technical and<br>> commercial world. However, the chances are quite limited, and the<br>> governing coalition has shown little interest in dropping this<br>> endeavor.<br>> <br>> In particular, there’s a general election of the Bundestag in<br>> September. If this law is going to have a good chance to pass, it has<br>> to reach the President’s desk well ahead of that date. The coalition<br>> government might try to speed up getting recommendations in favor of<br>> introducing such a Leistungsschutzrecht in order to have the second<br>> and final required readings by February. The very last possible date<br>> for a second and final reading is the last week of June.<br>> <br>> In the meantime, all it took was a skilled programmer to come up with<br>> a tiny Chrome extension that will detect URIs in plain text and create<br>> snippets on the fly, thereby completely circumventing the LSR. You can<br>> test the proof of concept here have a look at thescreenshot that<br>> compares a demo page without the plugin or with the plugin enabled.<br>> <br>> It is almost certain that if this LSR becomes law, a huge amount of<br>> legal expertise and programming skills will be wasted to present<br>> workarounds to the LSR to restore what had been possible until then or<br>> come up with technical or legal countermeasures to stop these<br>> workarounds. One might think that there are enough actual things to<br>> do.<br>> <br>> <br>> --<br>> Mathias Schindler<br>> Projektmanager<br>> Wikimedia Deutschland e.V.<br>> web: http://www.wikimedia.de<br>> mail: mathias.schindler@wikimedia.de<br>> jabber: mathias.schindler@gmail.com<br>> <br>> Stellen Sie sich eine Welt vor, in der jeder Mensch freien Zugang zu<br>> der Gesamtheit des Wissens der Menschheit hat. Helfen Sie uns dabei!<br>> http://spenden.wikimedia.de/<br>> <br>> Wikimedia Deutschland - Gesellschaft zur Förderung Freien Wissens e.<br>> V. Eingetragen im Vereinsregister des Amtsgerichts<br>> Berlin-Charlottenburg unter der Nummer 23855 B. Als gemeinnützig<br>> anerkannt durch das Finanzamt für Körperschaften I Berlin,<br>> Steuernummer 27/681/51985.<br>> <br>> _______________________________________________<br>> Advocacy_Advisors mailing list<br>> Advocacy_Advisors@lists.wikimedia.org<br>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors<br></div> </div></body>
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