A while ago we reported that the German Federal Ministry of Justice (BMJ, Bundesjustizministerium) published a proposal for the implementation of a new neighboring right for press publishers.
Last Friday, a second draft for implementing such a new neighboring right into the German Copyright Code has been published by the Ministry. Compared to the first draft, the scope of the new neighboring right is far more limited: according to the new draft press publishers will only have a claim for remuneration against search engine companies. Other users like bloggers, companies other than press publishers or law firms would not need to obtain a license from the press publisher if they make available a press product.
Let’s take a closer look at the draft: The (future) section 87 f is unchanged in the new draft; 87 f would still provide that „press publishers“ have the exclusive right to make „the press product“ or „parts thereof“ publicly available for commercial purposes.
The major change of the second draft is contained in section 87 g subsection 4: while the first draft required any user to obtain a license from the press publisher unless the use of the press product is only for non-commercial use, the new draft now phrases the exemption way broader: according to section 87 g subsection 4 of the amended draft it shall be admissible to make the press product publicly available insofar as such making available is not done by a search engine company.
Does this mean that press publishers also have a claim for remuneration if a press product is to be found at Google News since a (or rather the) search engine company provides it? In the case of Google News the wording does not really allow for another conclusion. However, the real intention of the authors of the draft remains questionable since news aggregators are not mentioned anywhere in the reason of the proposal.
Even though the second draft is no complete about-face by the Ministry of Justice, the amended draft limits the scope of the new neighboring right to quite a minimum. The reason of the amended draft rather plainly states that the new regulation protects the press publishers from the systematic use of its publishing achievements by search engine companies that gear their business model straight to such use. This is the very reason why the whole legislative process has been started, no more and no less. The brief second draft for a new neighboring right which is intended to soundly complement the existing copyright regulations nearly exclusively addresses the main and original target of the press publishers and the most notable opponent of the new neighboring right: Google.