[Advocacy Advisors] German copyright change introducing an ancilliary right is moving forward

Tue Feb 26 14:24:02 UTC 2013

The draft bill introducing an ancilliary copyright for press
publishers in Germany (Leistungsschutzrecht, LSR) is now scheduled for
second and third reading in the plenary of the Germany parliament.
This means that by friday 10 o’clock a.m., Germany might launch the
most innovation hostile law out there in recent years and threatening
one of the most fundamental features of the internet, the ability and
right to link to third party content.

The German Parliament’s judiciary committee is going to vote on a
final recommendation on Wednesday in closed session, possibly altering
the text of the bill and then sending it to the plenary. This fast
tracking comes despite heavy criticism from the chairman of the
judiciary committee, Siegfried Kauder from the ruling Christian
Democratic Union, who both sees procedural and constitutional flaws in
this bill and who has announced to vote no in the final vote. He will
also call upon the German President Gauck to refuse signing this law
on constitutional reasons
(https://netzpolitik.org/2013/siegfried-kauder-leistungsschutzrecht/).

Despite all the procedural and constitutional objections to the
Leistungsschutz bill, there are also a couple of technical and
political ones. Critics (and there are plenty of them) raise concerns
that the collateral damage by this change in copyright will hurt
search engines, innovation in general and especially smaller press
publishers. They point to ambiguous language in the bill that will
cause legal uncertainty and lawsuits that will take years to be
settled. The German government and supporters of the bill have done
little to address these objections. On Saturday, I published an
advance copy of the answers by the government in response to a letter
of inquiry by the opposition Left Party
(https://netzpolitik.org/2013/bundesregierung-woher-zur-holle-sollen-wir-denn-wissen-ob-und-wie-das-lsr-funktionieren-wird/).
There is a continuing pattern in the government’s response referring
open questions to be settled by courts or simply by ignoring the
question.

One of the last opportunites to discuss the mechanisms of this
ancilliary right within the parliament lasted for 90 minutes today at
an expert hearing at the subcommittee for New Media (Unterausschuss
Neue Medien, UANM) at the German Parliament.

Public invitations for this hearing were sent out only a couple of
days ago, after two weeks of behind-the-curtain negotiation between
the governing factions in parliament (Christian Democrats (CDU/CSU)
and Liberal Democrats (FDP)) and the opposition factions (Social
Democrats, Left Party and Green Party). CDU/CSU and FDP had previously
refused to schedule another hearing next to the judiciary committee
hearing in January
(http://searchengineland.com/german-leistungsschutzrecht-146826)
telling that all questions could also be addressed in this expert
hearing. As it turned out, there were a couple of technical questions
that could not be addressed, due to the fact that none of the invited
experts in the judiciary committee hearing were experts in the field
of technology. How could anyone have known that there are at least to
kind of experts out there!

The subcommittee on New Media belongs to the committee on Culture and
Media and its power is much more limited compared to a full size
committee. However, the meeting today could address a couple of
criticisms that were raised after the January hearing:

The UANM meeting offered live streaming, a recording of this hearing
will be published in the parliament’s media archive
Among the four invited experts, this was the first hearing that
involved a representative from Google (who is the primary target of
this law)
This meeting’s focus was technology, especially the technology
involved to allow or restrict crawling and indexation of web content,
e.g. by press publishers

Invited experts were

* Dr. Wieland Holfelder, engineer at Google (there was a consensus
agreement by the committee members  that he could pass non-technical
questions to legal counsel Arnd Heller from Google, who was sitting
behind him)
* Dr. Thomas Höppner, representative from the press publishers’ association BDZV
* Prof. Dirk Lewandowski, University of Applied Sciences, Hamburg
* Michael Steidl, International Press Telecommunications Council (IPTC), London

Two experts were invited by the majority factions (Höppner and
Steidl), two experts were invited by the opposition (Holfelder and
Lewandowski). The procedure was following the usual procedures: There
were three rounds of questions for members of parliament, two
questions from each faction to one expert or one question to two
experts. There was no opportunity for introductory statements by the
experts and no strictly enforced time limit on answers.

So, in order for an expert to be allowed to speak, he has to be given
a question from a member of parliament. An expert is not allowed to
ask questions or offer refutations to other experts directly. This
results in a strategy that each side is going to give softball
questions to their own experts and potentially compromising questions
to the experts from the other side. It has to be assumed at many
hearings that questions were exchanged before the meeting and that
there is some level of expectation on what the answer might be. This
is exceptionally true for partisan experts whose employers directly
benefit from or suffer by the outcome of this legislative process.

Some of the softball questions provided the experts the opportunity to
explain how robots.txt works (Holfelder) or explain the shortcomings
of robots.txt (Steidl and Höppner).

Holfelder introduced himself as engineer who implemented his own web
crawler 14 years ago. He distributed printouts of robots.txt examples
and the resulting snippets in the search engine results pages. He
explained additional meta-tags that Google uses to add or remove
content from the Google (or any other of the leading search engines).
To some extend, his presentation felt both verbose and strangely
elementary. In an ideal world, none of this information would have
been new to a subcommittee that specifically focusses on such topics.

Petra Sitte, (Left Party) had asked Holfelder to comment on ACAP, a
protocol that was proposed by a few publishers and has failed to get
any meaningful level of acceptance by the market. Holfelder provided a
few examples in which implementing ACAP will be prone to spammers, as
it mandates the way in which provided descriptions have to be shown.

Konstantin von Notz (Green Party) asked Holfelder whether it was
possible for a search engine provider to detect whether specitic
content on a web site is covered by this LSR or not. This is - in my
opinion - one of the most important questions of this bill because it
outlines the potential for huge collateral damage or legal uncertainty
over the coming years.

The ancilliary copyright is awarded to a press publisher (a press
publisher is defined as anyone who does what press usually does) for
his press product (a product of what a press publisher usually does).
It exists next to copyright awarded to the author who can license
his/her content to anyone else. It means that it is not the text
itself that defines whether conent is covered by the LSR. Here is an
example: A journalist maintains his  personal web site in order to
advertise for his services as a freelancer. He has a selection of half
a dozend of his articles on his web site that help to inform potential
customers on his journalistic skills. These articles are of course
protected by copyright. They will not, however, be covered by the
ancilliary copyright because he is not a press publisher. The very
same texts on the web site of a magazine’s web site will be covered by
the LSR. How can a search engine determine if text on a web site is
subject to both copyright *and* LSR?

Holfelder replied that Google has a couple of heuristics to determine
whether a certain page is provided by a press publisher. However, this
law has no provisions for “honest mistakes”. If Google failes to
detect LSR content and does not receive prior permission to index such
content, Google faces legal consequences. There is no such things as a
“warning shot” or an obligation by the press publisher to proactively
inform a search engine whether it things a certain page is LSR
covered. This is the legal equivalent of a minefield.

Holfelder stated that a search engine would in this scenario tend
towards overblocking in order to avoid a lawsuit for violating the
LSR.

Höppner, the press publishers’ expert spent his time mocking a
comparison about this bill that involves taxis and restaurants. He
then stated how services such as Google News substitute visiting the
original pages, with some rambling about a Google service called
“Google Knowledge”. It was hard to tell whether he meant the failed
Google Know project or the Google Knowledge Graph in the standard
Google search.

His main argument on robots.txt was a passive-aggressive one.
Publishers do not like robots.txt per se, they merely use it to fight
for the last crumbs that search behemoths like Google have left them.
In other words, if a press publisher is providing meta description
text  (such as http://support.google.com/webmasters/bin/answer.py?hl=de&answer=79812
or twitter cards https://dev.twitter.com/docs/cards), this should not
be seen as some kind of agreement to actually use this text in order
to build snippets in a search engine. I severely doubt that this
position would hold in court or among the motivation of press
publishers.

Prof Lewandowski’s contribution to the hearing was an interesting one
as he is the first expert in a long time who does not seem to have an
agenda with respecto to the LSR. His viewed were balanced, nuanced
ones, highlighting both the high level of acceptance of robots.txt and
some of its shortcomings. He pointed out that at least at Google News,
the limited amount of sources and the opt-in-meachnism (yes, it’s more
complicated than that) of Google News would permit running such a
service in an LSR world.

Steidl used his time to explain IPTC’s contribution to the world of
standards and mentioning the RightsML project which is in active
development. He criticised robots.txt for being without a governing
organisation and for failing to express rights on a sub-article level.

Both Google and the press publishers were not very eager to present
actual numbers in Google News usage or how visitors are directed to
third party web sites. In round two, Google’s legal counsel Haller was
asked how Google will react to this bill if enacted. He replied that
Google does not know the final version of this bill (as there might be
amendments by Wednesday’s judiciary committee session) and that Google
has not decided yet on how to implement it. He pointed out that his
companry would have to not only deal with publishers from Germany but
from the entire European economic area who could exercise their own
LSR rights against Google.

--
Mathias Schindler
Projektmanager
Wikimedia Deutschland e.V.
web: http://www.wikimedia.de
mail: mathias.schindler at wikimedia.de

Ceterum censeo opera officiales esse liberandam -
http://urheberrecht.wikimedia.de/

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