I used to think Spain and its inalienable right to link licensing was the height of copyright maximalism lunacy, but Germany has raised the bar.
The Disruptive Competition (DisCo) Project has an update on German news publishers and their ongoing efforts to force Google to pay for the use of snippets.
The Copyright Arbitration Board of the German Patent and Trade Mark Office (DPMA) recently recommended that snippets, i.e. small text excerpts used by search engines and online aggregators below hyperlinks, can comprise exactly seven words. This suggestion is part of the DPMA’s recommendation to privately settle a dispute between online services and press publishers over Germany’s ancillary copyright, also termed the ‘snippet levy’. Should a court confirm this recommendation, snippets which go beyond this limit of seven words would in theory have to be licensed from news publishers.
The proposal is intended to settle a long-running dispute between Google and VG Media, a (possibly illegal) collective of German news publishers. VG Media had been formed last year so that the news publishers could combine their strength in their fight against Google, and force Google to pay for the use of snippets under Germany’s ancillary copyright law.
Last year VG Media filed an antitrust complaint on this same dispute, but that went nowhere. VG Media subsequently caved on this issue, and collectively gave Google permission to use the snippets, but that doesn’t mean they gave up.
Late last month VG Media started muttering about suing Google over the snippets. Apparently they are planning to use this ruling from the DPMA as the basis for their suit.
And that will be a problem not just because the suit will ultimately fail to achieve its goal (Google would rather stop using the snippets than pay for them) but also because if Germany legally defines a snippet as 7 words then it would be in violation of the Berne Convention:
Failure is one thing — being illegal under international law obligations quite another. As explained before, the Berne Convention, an international agreement governing copyright, provides for a mandatory quotation right in Article 10. Interestingly, a revision of this provision in 1967 expanded the quotation right significantly. While previously it was only permissible to make “short quotations”, it is now allowed to make “quotations” from articles — the word “short” disappeared from applicable law following the recommendation of copyright experts and the majority of diplomats. At that time even Germany’s delegate strongly recommended to not include the word “short” before the word quotations. While that is a particularly nice coincidence, the matter is not to be taken lightly. Since the Berne Convention is incorporated in the TRIPS agreement, violating Berne amounts to a trade barrier which can be sanctioned by the WTO under its dispute resolution mechanism.
So not only has Google made it clear that they won’t pay a license fee, and not only have the news publishers already given in, but we’re now seeing that the only way to give the publishers what they say they want is for Germany to violate international treaties.
Now might be a good time for the publishers to throw in the towel, don’t you think?
found via Techdirt