[Advocacy Advisors] [FYI] German Leistungsschutzrecht bill in parliament

Thu Jan 31 18:48:48 UTC 2013

Hi Mathias, 

Thanks for the update.

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.

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.

Pine

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