Proposal for a New Neighboring Right for Press Publishers

The German Federal Ministry of Justice has published the long-awaited proposal for the implementation of a new neighboring right for press publishers. According to the reason given for the draft, press publishers will be granted the neighboring right in order to ease their lives in our digital times (by way of making sure that they receive a compensation for the specific work that they do).

For more than three years, press publishers have lobbied for a new IPR as a prerequisite to maintain quality journalism in the digital age. As was to be expected, the request has been quite heavily criticized by renowned scholars, the German industry and interest groups like IGEL (initiative against a neighboring right for press publishers) – with quite a notable list of supporters. The most notable opponent of such a new right (and main target of the press publishers) is Google, aka the usual suspect.

From the point of view of the press publishers who want and need to be able to gain noteworthy profits from their online press publications, Google’s business model unjustly exploits their content and publications. News aggregators like Google News are said to be a prime example of the internet age’s free riding business models massively harming the press publishers as advertising budgets are not spent where the content comes from. On the other hand, a neighboring right that will protect an individual sentence or a few words taken from an article would obviously be substantially cutting into freedoms that most Internet users have become accustomed to.

Similar to other neighboring rights that exist in Germany, press publishers are now to receive a compensation through an according license if their content is used commercially by third parties – or else, they can sue for infringement of the neighboring right. If adopted, this will be quite a change to the use of the internet as we know it, and also a unique approach on international level. The specific works/activities of press publishers that are not copyright protected (as opposed to the works of the individual authors) will soon be protected by a neighboring right just as strong as copyright.

There has been a lot of criticism on the plans for the new neighboring right, both before the publication of the draft and afterwards. But before joining in (we will in part): What would be protected by a new neighboring right and how would it actually work?

As per the draft, (new) section 87f of the German Copyright Act would provide that “press publishers” have the exclusive right to make the “press product” or “parts thereof” publicly available for commercial purposes. According to subsection 2 the term “press product” is defined as the “editorial-technical determination of journalistic contributions within the framework of a periodically published collection with one title that – when taking into account all circumstances – is predominately be regarded as press typical” (yes, the definition is that precise…). The term “Press Publisher” is supposed to be defined as (it’s actually not directly defined in the text of the draft) as “whoever is economically/as a business responsible for the press product”.

The problem with the wording that stands out at you right away is of course the notion of “parts thereof”. As is the case for most German style acts of legislation, it will naturally be the courts’ job to figure out the precise meaning of the terms, and how they should be applied given their abstractness and imprecision. But “parts thereof” is “parts thereof” – any parts. The wording of the draft would thus lead to search engines or aggregators showing snippets, commercial users of Twitter and Facebook who post a headline or any part of a work published by the press, and even publications of a single sentence (or even single words, if you take the draft as it is written) in a commercial blog requiring a license to do so.

The wording does not leave any (or at least not much room) for interpretation. It is difficult to see how the courts will reasonably limit the scope of the act. The current definition also embraces tiny parts, including short headlines and even individual words, of an article, elements that would never ever be protected under “proper” copyright law. The reasons for the draft given by of the Federal Ministry of Justice support that approach, as the protection for press products is supposed to be comparable to the protection granted to music producers (another neighboring right). In its 2008 decision “Metall auf Metall” (“Metal on metal”) called upon by the Ministry to support its views the German Federal Court of Justice (Bundesgerichtshof, BGH) held that even taking only smallest shreds of tones already infringes the exclusive right of the music producer. Transpose that to the world of the press and you are bound to assume that taking so much as a word would suffice to violate the press publisher’s rights. Similarly, while links as such do not fall under the definition of the draft, they would if they are built, for example, by using the title of the post (such as”).

The rights of the press publishers would expire just one year after the publication of the relevant article. But still, the wording of the draft as it is, taking into account that the “Metall auf Metall” decision is supposed to give us the guidelines for interpretation, is quite obviously problematic. That is not to say that the idea of introducing a new neighboring right is good or bad as such. But in such difficult surroundings (“traditional” press vs. certain existing trends and development in the “Internet world”; quality journalism and the necessary funding vs. an assumed “everything needs to be free” culture), one would expect that the legislator at least gets the basics right. Unless, of course, the legislator is actually planning on having individual words protected – which I cannot believe.

The new neighboring right could be enforced just like most other neighboring rights – i.e. essentially just like copyright: Those who want to publish “a part of a press product” require a license to do so. Those who publish “a part of a press product” without having received permission can be taken to court for infringement, leading to “cease-and-desist”-claims and claims for damages (calculated usually on the basis of the license fees the publisher would have had to pay had he asked for a license to begin with).

Given the enormous amount of “we don’t like as a matter of principle” flack that the Ministry has already received, as well as the obvious problems with the draft itself, it will be interesting to observe the further legislative process. What I do think is rather certain, however, is that the (or at least “a”) new neighboring right for press publishers will be introduced.

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