Authors: Petra Sitte, Simon Weiß
In this article series, we will discuss the contents of the new draft of the DSM Directive. What was the Directive initially about, what does the current draft say, what has been changed compared to earlier drafts, and what needs to be amended in our view? Following our input on Article 17 and copyright contract law, we now continue with ancillary copyright law for press publishers.
What is it about?
The ancillary copyright for press publishers (Leistungsschutzrecht für Presseverleger) was adopted in Germany in 2013. It gives press publishers an exclusive right to publish short excerpts of texts which they have published, even if these texts are not protected by copyright law. From the very outset, this regulation was aimed at Google, which displays short excerpts (“snippets”) of web pages in its search engine results. The adoption of the ancillary copyright marked a failure across the board, as it left unfulfilled the hopes of some publishers that this legislation would secure them a share in Google’s revenues. This failure was predictable, as accessibility via search engines yields far more benefits for publishers than it does for Google itself. In the end, the ancillary copyright law granted Google a free license, which ultimately even strengthened Google’s position and helped to displace small search engines and news aggregators. Other European countries have made similar experiences.
Nevertheless, the DSM Directive introduced a similar regulation that is binding throughout Europe and in some points it even moves beyond German ancillary copyright law – which only applies to commercial providers of search engines or other content aggregators – to cover all commercial uses. In addition, it extends the respective right to two years instead of one.
What does the draft provide for?
Correspondingly, the draft bill replaces previous German regulations with provisions based on the Directive. One important addition is that it defines the “equitable share” of revenues that authors are entitled to according to the Directive, which should be at least one third.
What has changed?
The draft bill contains several changes to the first discussion draft. These include the above-mentioned specification of an “equitable share” as well as the helpful clarification taken from the recitals of the Directive that the ancillary copyright does not cover the use of facts contained in a press publication.
The most important change, however, concerns the deletion of a provision that specified the Directive’s exemption regarding the “use of single words or very short extracts”, which explicitly mentioned the heading, preview images with a maximum resolution of 128 x 128 pixels, and sound or image sequences of up to three seconds.
Even if this specification was unsatisfactory, leaving a “very short excerpt” undefined again hardly helps to support the cause. When considering the typical use case of a search engine or aggregator that provides a link with a preview of the content, it is clear that the corresponding excerpt must be selected automatically. Therefore, clearly defined thresholds in terms of length are required to operate such applications in a legally compliant manner.
What should be done?
The best thing, of course, would be to eliminate ancillary copyright legislation completely. Since European law does not permit this, however, the focus should be on implementing the Directive in such a way as to enable the legally safe operation of search engines and other services.
To this end, the concept of “very short excerpts” needs to be specified, and this specification needs to be included in the Directive. It is necessary to define a minimum length, not only for images, video and sound, but also for text. Defining a maximum resolution for images makes little sense; at least photographic images are already protected, either by copyright or by property rights on photographs. In this respect, current legislation has already clarified the contexts in which their reproduction is permitted, which consequently eliminates the need for further restrictions.
To the extent that ancillary copyright generates any income at all—which has not been the case in Germany so far—the authors on whose work this income is based should be entitled to more than one third of the generated income. The German Association of Journalists (Deutscher Journalistenverband) has pointed out in this context that in the relevant collective and framework agreements approximately 50 percent of the income generated by subsequent use is assigned to authors.