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

Thu Feb 28 01:46:46 UTC 2013

Is this resolved per
http://www.spiegel.de/international/germany/germany-waters-down-google-search-engine-legislation-a-885899.html
?

On Tue, Feb 26, 2013 at 7:24 AM, Mathias Schindler
<mathias.schindler at wikimedia.de> wrote:
> 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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