Only two EU countries so far have implemented an ancillary copyright to grant new online rights to content owners such as newspapers and publishing houses: Spain and Germany. Google decided to shut down its news service in Spain entirely in response to the new law, which required the Internet giant to pay a levy for the use of headlines and snippets. Germany’s ancillary copyright regime is not mandatory but since its introduction three years ago, courts have had to deal with several lawsuits concerning alleged licensing infringements. None of the trials ended with a satisfactory outcome for the parties involved. This doesn’t exactly sound like a success story – nonetheless, the EU Commission plans to introduce a common copyright and communications law for all member states before the end of 2017. How come? The draft, published in mid-September, speaks of a need to bring the common market’s regulatory framework up to speed with the “new reality” of the Internet age and its cross-border data flows. The EU’s outgoing Digital Commissioner, Guenther Oettinger, is convinced that the legal overhaul will strengthen the bargaining hand of traditional media businesses in the face of increasingly fierce competition from the big Silicon Valley-based online platforms. After all, he argues, it’s the content provided by the former that makes Google and others a lot of money. Leveling the playing field sounds like a noble goal – but what does the actual proposal look like?

Twenty Years of Copy Protection

The extension of the period of copyright protection of online content is central to the proposal. In Germany, the term is currently one year. If the EU-wide legislation is introduced as currently drafted, the press will have qualified rights to control reproductions of their works or the making available of their content online for 20 years from the beginning of the year that follows publication of the material. Contrary to German ancillary law, which exempts “single words and the shortest excerpts” from copyright protection, the EU proposal doesn’t define a minimum limit for online content. In theory, this would mean that not only snippets but also headlines could be subject to licensing agreements. Following the German and not the Spanish example, however, the draft forgoes the obligation to contract, i.e. existing exceptions that allow copyright material to be used for free by search engines and aggregators without publishers’ permission would continue to apply.

Content Must Be Worth the Effort

Mr. Oettinger’s plans were received with great enthusiasm by the advocates of ancillary copyright law in Germany – VG Media, a pan-European collecting society of commercial media enterprises and the Federation of German Newspaper Publishers (BDZV). They hope that the Digital Commissioner’s initiative will help them in finally securing their rights. “On the one hand, you have the fools, who create quality content for a lot of money. And on the other hand, you have the clever guys, who copy content from others and offer it for free, making money off it at the same time through ads. The government has a duty to put an end to the daily expropriation of publishing companies,” Springer CEO Mathias Doepfner is quoted as saying in a feature by the German public broadcaster Deutschlandfunk. A succinct summary of the perceived roles: Creators of high-quality journalism are in a stand-off with copycats, who feed snippets to their readers and earn a lot of money through mere advertising – reproducing instead of creating content.

Your Friendly Search Engine

For most media, however, the day-to-day reality of journalism isn’t as black and white as that. Using the Twitter hashtag #trafficleaks, ZEIT ONLINE and a number of other news media and blogs recently published their online traffic figures. While the graphics show clearly that most readers of ZEIT ONLINE access the website directly (60%), a still impressive 20% are redirected via Google. In the case of local media, the share of Google-directed traffic is even higher, e.g. 41.1% for the Nordwest-Zeitung. For this and other reasons, the editor-in-chief of ZEIT ONLINE, Jochen Wegner, is not convinced that an ancillary copyright for publishers is the solution to their long-standing digital dilemma. Whenever the business model of newspapers is failing, “the Internet” – and in a pars-pro-toto fashion Google – serve as convenient scapegoats. However, this argument doesn’t hold-up under scrutiny, as evidenced by the large share of users who are redirected to online media via Google. Jochen Wegner on Deutschlandfunk: “You simply can’t say that because Google exists, the Berliner Zeitung is suffering, and so Google must pay money to the Berliner Zeitung. This is a very simplistic way of reasoning, which I, for my part, would reject.”

What You Want and What You Get

In Germany, Google has so far refused to pay publishers for their snippets. This is easy enough when you’re practically the only search engine on the market. When publishers approached Google with their demands, the company reacted by excluding search results for the media in question from Google News. Since nobody wants – or can afford to – miss out on the Google traffic, news groups represented by VG Media and BDZV chose to waive their rights to remuneration and instead took the matter to the courts. Now, the advocates of ancillary copyright law believe that a EU-wide regulation would be more difficult to ignore for Google. While a company the size of Google could at least afford to pay publishers and be none the worse for the wear, the situation in Germany is already worrisome for small and mid-sized companies. As long as the proposal doesn’t clearly say how many words or which parts of an article can be displayed for free, companies are caught in a legal limbo. The associated costs of a trial and potential fine are a serious threat to the existence of small online firms. Several politicians have already criticized the vague character of the EU proposal. A group of MEPs launched the “Save The Link“ campaign, because they fear that the proposed licensing rules could jeopardize the private use of links or snippets of news stories. Mr. Oettinger has denied this but, as a matter of fact, the draft doesn’t explicitly refer to commercial use only.

Anna Hollain1Translation by Anna-Maria Hollain, Translator & Media Analyst at pressrelations GmbH
Since 2011 Anna-Maria Hollain has been working as a translator and media analyst. Before that, she was an intern at the Spanish newspaper EL PAÍS in Madrid, where she wrote for the newspaper’s global edition. Her research interests include aspects of linguistic and cultural transfer across media channels and the interplay of journalism and media monitoring.

 

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