English translation of ancillary copyright for publishers as passed by German government



On August 29 2012, German federal government passed a revision of the national Copyright Act granting ancillary copyright protection for news publishers. This move intends to give publishers a similar protection of their investments in content as other creative industries such as music and film have enjoyed for decades. The rapid growth of aggregation on the internet left publishers often unprotected against business models relying on copying their material. To help non-German speakers access the copyright revision this blog presents a non-official private translation. Errors in translation cannot be excluded. The revision is being sent to German parliament Bundestag for deliberation.

Draft Legislation for Enactment by the German Federal Government

Draft of a Seventh Revision of the Copyright Act of the Federal Republic of Germany

A. Problem and Objective

The purpose of this draft legislation is to ensure that publishers in the online area are not placed at a disadvantage relative to other aggregators of works. In order improve the protections accorded to news publications on the Internet, ancillary copyright protections will be introduced for news publishing houses producing this content in the first instance.

B. Solution

The following amendments to the Copyright Act of the Federal Republic of Germany (Urheberrechtsgesetz [UrhG]) are proposed:

The ancillary copyright protections for news publishing houses grant these companies the exclusive right to make published news material publicly available on the Internet for commercial purposes. The protection, however, is provided only against systematic forms of access to published materials by providers of search engines and providers of online services that aggregate content in the manner of a search engine. The reason for this is that their business model is particularly oriented towards accessing published materials for the benefit of these providers’ own added value. Accordingly, these new protections will not apply to other users such as e.g. bloggers, companies or other commercial businesses, associations, law firms or private and unpaid users. The proposed provision thus signifies no change at all to possible uses by other users, or for consumers. The proposed ancillary copyright for news publishers will have no impact with regard to their rights and interests.

News publishing houses can only demand that providers of search engines, and providers of such services that aggregate this content in similar fashion, refrain from unauthorised forms of usage, and it is only these providers that will be required to purchase licences for such usage. This does not apply to pure linkage and forms of usage within the scope of the freedom to cite passages of published works.

C. Alternatives

None.

D. Budgetary Outlays without Compliance Costs

No budgetary outlays without compliance costs are anticipated at the German federal, state or local government levels.

E. Compliance Costs

E.1 Compliance Costs to the Citizenry

There will be no compliance costs incurred by the citizenry.

E.2 Compliance Costs to the Business Community

The law results in compliance costs to the business community. Because the magnitude of these costs cannot be estimated with a reasonable amount of effort at this time, an estimate of the compliance costs to the business community is not possible with a reasonable amount of effort.

Of this amount, costs of bureaucracy due to disclosure responsibilities and duties to provide information:

None.

E.3 Compliance Costs to Public Administration

The draft legislation does not involve any compliance costs to public administration.

F. Further Costs

None.


Draft Legislation for Enactment by the German Federal Government

Draft of a Seventh Revision of the Copyright Act of the Federal Republic of Germany

of …

The Bundestag has passed the following law:

Article 1

Revision of the Copyright Act of the Federal Republic of Germany

The Copyright Act of the Federal Republic of Germany of 9 September 1965 (BGBl. I p. 1273), amended most recently by … , is hereby amended as follows:

1.   In the Table of Contents, following the entry relative to § 87e, the following information is hereby inserted:

Section 7

Protection of News Publishers

§ 87f News Publishers

§ 87g Transferability, Life and Limits of Rights

§ 87h Author’s Claim to a Share in the Proceeds.

2.   Following § 87e, the following Section 7 is hereby inserted:

Section 7

Protection of News Publishers

§ 87f

News Publishers

(1) The producer of news materials (news publisher) shall have the exclusive right to make said materials publicly available, in whole or in part, for commercial purposes. If the news publication has been produced in a company, the owner of that company shall be considered the producer of the publication.

(2) A news publication shall be defined as an editorially determined compendium of journalistic articles within the scope of a collection periodically published under a particular title that, considering the overall situation, must be deemed predominantly typical of a publishing house, and that is not issued primarily in service of self-promotion. Specifically, journalistic articles shall be defined as such articles and images as are intended to convey information, to assist in the shaping of opinions, or to entertain the recipients thereof.

§ 87g

Transferability, Life and Limits of Rights

(1) The right of the news publisher shall be transferable under § 87f paragraph 1 clause 1. §§ 31 and 33 shall apply accordingly.

(2) The right shall expire one year following publication of the news material in question.

(3) The right of the news publisher cannot be asserted to the detriment of the author or of any party entitled to copyright protection whose work or object of protection under this Act is contained in the news material.

(4) The provision of public access to news publications or parts thereof shall be permissible to the extent that this access is not provided by commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion. For the remainder, the provisions of Part 1 Section 6 shall apply accordingly.

§ 87h

Author’s Claim to a Share in the Proceeds

The author shall be provided with a reasonable share of the remunerations issuing from the author’s work.

Article 2

Effective Date

This Act shall take effect on  … [insert: first day of the third calendar month following promulgation].


Explanation

A. General Part

I. Aim and Object of the Draft Legislation

In keeping with the Coalition Agreement, this draft legislation provides for the introduction of an ancillary right of copyright for news publishing houses. This is intended to ensure that publishing houses in the online area are not placed at a disadvantage relative to other aggregators of works; it is also intended to improve the protections accorded to news materials published on the Internet.

II. An Overview of the Primary Provisions

The purpose of introduction of ancillary copyright protections for publishing houses is to take due account of news publishers’ newly emerging needs for protection. The call for protection of published materials was already raised in the 19th century. Even then, newspaper publishers complained that competing papers were publishing articles without conducting research of their own, thereby exploiting the published materials of others. Prior to the digital revolution, the need for protections for publishers was adequately taken into account in the form of the legal protections to which published texts and photographs were subject. Today, however, news publishing houses find themselves increasingly faced with a situation in which other users systematically access their published materials for the sake of their own added value, using these materials in a manner that far exceeds the mere insertion of links to the websites on which the materials were originally published. In view of this development, the legislature is called upon to strike a new balance between the economic interests of news publishers, on the one hand, and commercial users on the other. The introduction of a new ancillary copyright must not, however, be misunderstood as a legislative form of protection of old and outdated business models. The new ancillary copyright protections cannot and should not constitute a correction to structural changes in the market. It is above all the news publishers themselves that must respond to these changes by introducing new offerings of their own.

The new ancillary copyright for news publishers that will be provided alongside existing legal protections also address the concerns of the authors, i.e. above all the journalists: this is provided for in the express provision governing the relationship between the two rights as set forth in § 87g paragraph 3 of the Copyright Act (UrhG), according to which the news publisher’s ancillary copyright rights cannot be asserted to the detriment of the author. Furthermore, § 87h UrhG provides for a reasonable share for the author in the proceeds of published material as generated through licensing under the new ancillary copyright provisions. Accordingly, the introduction of ancillary copyright for news publishers is also in the economic interest of the authors holding a share in the news publication.

Because changed framework conditions for publishers of news items on the Internet also affect the framework conditions for Internet usage overall, the new ancillary copyright should be limited in scope and applicable only insofar as required to protect legitimate publishing interests. All that is required is protection against systematic access to published materials by commercial operators of search engines, and by commercial providers of online services that aggregate content in a manner comparable to that of a search engine. This is because their business model is particularly oriented towards accessing published materials for the benefit of these providers’ own added value. Thus, these protections also apply to services that, rather than search the entire Internet, simply search individual areas thereof, regardless of the technical specifics of the service involved. Known as ‘news aggregators’, these services generate their hits and present their results in the same ways a search engine would. These protections do not, on the other hand, apply to services that use published materials in another manner, e.g. by displaying to the Internet user a selection of publications based on a particular service’s own assessments. Nor will ancillary copyright apply to search functions conducted within a user’s own data holdings. These new protections also do not apply to other users such as e.g. companies or other commercial businesses, associations, law firms, bloggers or private and unpaid users. As a result, the proposed provisions do not mean any changes in the possible uses by other users, or for consumers. These proposed ancillary copyright protections for news publishers will have no impact with regard to their rights and interests.

The proposed legislation does not affect the flow of information on the Internet. Already in 2003, the Federal High Court of Germany [Bundesgerichtshof] found that a mere linking was not a violation of the laws of copyright (Decision handed down 17 July 2003, Case Reference I ZR 259/00 – the ‘Paperboy’ case). The same will hold true with regard to infringement of ancillary copyright protections for news publishing houses. The new ancillary copyright protections thus do not permit prohibition of links to material already published on the Internet. Where ancillary copyright protections accorded to news publishers under the proposed legislation are concerned, the limits of the laws of copyright will also apply; these limits include particularly the freedom to cite passages of published works.

Introduction of ancillary copyright for news publishers will grant news publishing houses a copyright protection of their own that places them in a position to proceed more simply and comprehensively against infringements of rights on the Internet. In case of infringement, news publishers will no longer be required to deliver a complex proof of the chain of rights and can instead proceed directly from their own rights, armed specifically with the power to press injunction claims.

III. Legislative Competence

The legislative competence of the German Federal Government issues from Article 73 paragraph 1 number 9 of the German Constitution [Grundgesetz] (Law of Copyright).

IV. Compatibility with the Legislation of the European Union and International Agreements

The draft legislation is compatible with the laws of the European Union, and with international agreements to which the Federal Republic of Germany is a party.

V. Consequences of the Legislation

1. Sustainability Aspects

The project does not impinge upon any aspects of sustainable development within the terms of the national sustainable development strategy.

2. Budgetary Outlays without Compliance Costs

No budgetary outlays without compliance costs are anticipated at the German federal, state or local government levels.

3. Compliance Costs

The law results in compliance costs. Because the magnitude of these costs cannot be estimated with a reasonable amount of effort at this time, an estimate of the compliance costs to the business community is not possible with a reasonable amount of effort.

Introduction of ancillary copyright protections for news publishers (§ 87f paragraph 1 clause 1 UrhG-E) grants these companies the exclusive right to make news publications publicly available on the Internet for commercial

purposes. It was already possible for news publishing houses to assert rights within the scope of these rights as contractually granted to the authors of the material published, i.e. the journalists in particular. In future, news publishing houses will be able to act on the basis of a related right of copyright of their own.

This ancillary copyright creates a new legal instrument. As a result, there is no basis in experience to which to refer in an effort to estimate the level of remuneration that this will entail. Nor is it the case that estimates of these amounts have been drawn up by the beneficiary news publishers. Furthermore, the draft legislation does not contain any compulsory specifications with regard to how ancillary copyright is to be enforced. Specifically, there are no provisions indicating that the ancillary copyright is to be licensed by the holder of the rights itself, or whether third parties will be commissioned with safeguarding these rights. Against this backdrop, then, there can be no forecasts made of the compliance costs involved hereunder.

4. Further Costs

When the ancillary copyright provisions have been introduced for news publishing houses, the publishing houses will be in a position to demand that providers of search machines and of services similar to search machines pay a fee for online use of news publications. No estimate can be given of the expected volume of remuneration in which this will result. No significant increase in price level, and thus of consumer price levels, is expected.

5. Consequences with Regard to Equality Policy

There are no consequences expected with regard to equality policy.

B. Special Part

On Article 1 (Revision of the Copyright Act of the Federal Republic of Germany [UrhG])

Concerning Number 1

Because Section 7 involves the insertion of new provisions for the protection of news publishers in Part 2 of the Copyright Act, the Table of Contents needed to be supplemented.

Concerning Number 42

Concerning Section 7 (Protections for News Publishers)

Concerning § 87f

§ 87f paragraph 1 specifies that the news publisher is to be the holder of ancillary rights of copyright. It is the news publisher that provides the business-organisational and technical service that publication of news materials requires, and it is also the news publisher that is harmed by the commercial online usage of news material by third parties, a usage that has grown so easy in the digital world. As in the comparable case of the ancillary copyright rights of makers of recordings (§ 85 paragraph 1 clause 2 UrhG), here, too, the principle applies that the news publisher is not only a natural person that produces news materials. Rather, if the news material is produced in a company, the ancillary copyright is vested in the owner of the company. The dispositive consideration here, as in the case of the corresponding provision found in § 85 paragraph 1 clause 2 UrhG, is who bears responsibility for the success of the business, and to whom this success is attributable.

The draft legislation is limited to a grant to the news publisher of an ancillary copyright with regard to the rights to make news materials publicly accessible. In this connection, there is no need to answer the question currently before the Federal High Court of Germany (Case Reference I ZR 116/10, the ‘myvideo’ case). That case poses the question whether, for online use, the right of reproduction for upload to the server can or must be licensed as an independent act of usage. Under the terms of the Coalition Agreement, ancillary copyright is meant to permit the assertion  of rights on the Internet. This protection already obtains if news publishers are given the right to make the news publicly accessible (§ 19a UrhG). There is no necessity to predicate the aim of protecting news publishers on the Internet upon a right of reproduction.

A news publisher’s exclusive rights as interdiction rights also encompass only the right to make the news materials – whether directly or indirectly – publicly available for commercial purposes. By way of departure from the definition of the term ‘commercial’ under the laws of commerce or taxation, the act of making accessible ‘for commercial purposes’ encompasses all acts of rendering accessible of the news materials that are either directly or indirectly connected to the generation of revenues, and all acts of rendering accessible that are connected to gainful employment. The protections that authors and other parties entitled to ancillary copyright enjoy with regard to their works and objects of protection against unlawful use on the Internet, however, shall remain completely intact and are unaffected by this new provision.

Indeed, small segments of news materials are already protected by ancillary copyright. Here there can be no other ruling than what the Federal High Court of Germany held in the ‘Metall auf Metall’ ['Metal on Metal'] case with regard to ancillary copyright protections accorded to makers of recordings (decision handed down 20 November 2008, Case Reference I ZR 112/06). Just as in the case of ancillary copyright protections for makers of recordings the object of protection is not the recording itself, here, too, the object of protection is not the news material but rather the financial, organisational and technical activity on the part of the news publisher instrumental to the specification of the news material. This entrepreneurial contribution extends to every part of the news material; the requisite funds must be forthcoming, whether for a small segment or for the provision of an entire edition. Even a party that makes use of just small segments intervenes in this entrepreneurial activity.

The proposed legislation does not affect the flow of information on the Internet. The mere insertion of an Internet link is not covered under ancillary copyright and remains permissible. Already in 2003, the Federal High Court of Germany found (decision handed down 17 July 2003, Case Reference I ZR 259/00 – the ‘Paperboy’ case) that the placement of a link to a copyrighted work on a duly authorised and publicly available website does not constitute an intervention into the rights of public disclosure of the work. The same holds true for the new ancillary copyright accorded to news publishers.

Under § 87f paragraph 2 UrhG-E, the ancillary copyright is a continuation of a specific determination of the published product, here the news material as an expression of a publisher’s activity. What is relevant here is not the manner in which publication occurs – whether, in other words, the news material is published offline only, in electronic form, or in a combination of offline and online forms. Not every form of publication is protected, however. The publication must constitute part of a collection of journalistic articles issued not once but on a continuous basis under a particular title. This mode of publication is predicated upon editorial selection and regularity of publication of the journalistic articles. Accordingly, a mere compilation of news items does not come under the purview of ancillary copyright protection. Articles intended primarily for self-promotional purposes, such as publications for customer loyalty or to attract new customers, do not enjoy protection.

Where Internet blogs are concerned, a distinction must be drawn. These blogs come in numerous forms. If a blog presents itself as an editorially overseen selection of journalistic articles continuously published under the same title, then even a blogger will enjoy ancillary copyright protection and will be entitled to remuneration if others make use of his or her blog. If e.g. a blogger’s prime occupation is as a freelance journalist, and if the blogger deals with his or her principal topic in the blog, then if the blog makes use of third-party news materials this usage will be deemed to be of a commercial nature under the proposed legislation. If the blog represents an activity that is typical of publishing houses, then the blogger will enjoy the new ancillary copyright protections.

Ancillary copyright protects news materials in their concrete articulation, not the written works contained therein, and not other elements such as graphics or stationary or moving images. Protection of these works and the objects of ancillary copyright shall be determined in accordance with the applicable provisions of the German Copyright Act. Accordingly, news publishers can, as they now can under current law, take action in cases of infringement of copyright or other ancillary copyright rights, based on the agreements in place between authors and ancillary copyright holders, on the one hand, and news publishers on the other.

Concerning § 87g

As a proprietary ancillary copyright without any content from a personality-rights standpoint, the news publisher’s right shall be marketable and transferable in its entirety under § 87g paragraph 1 UrhG-E. In this regard, the law is no different from the law that applies to makers of recordings or films. Clause 2 refers – as do the other ancillary copyright provisions – to §§ 31 and 33 UrhG and declares these to be applicable accordingly. Thus, a news publisher is at liberty to grant another the right to use the news material in individual or in all of the forms of usage reserved to it.

The life of the protection is set forth in paragraph 2. Here, a period of one year from publication would appear to be appropriate and adequate.

The news publisher’s right to the news material is created regardless of the rights, set forth herein, of authors and ancillary copyright holders to the works they have created and to the objects of protection covered by this law. According to paragraph 3, ancillary copyright cannot be exercised to the detriment of the authors and ancillary copyright holders involved in the news material in question. Authors and holders of ancillary copyright still have an opportunity e.g. to engage in online promotion of articles they have written without intervening in existing ancillary copyright protections.

Ancillary copyright for news publishers – like other forms of ancillary copyright – is provided only within the scope of limiting provisions. Under paragraph 4 clause 1, it is permissible to make news materials or parts thereof publicly available insofar as this is not done by commercial operators of search engines or by commercial services that aggregate content in a similar fashion. Naturally, this does not apply to use of copyrighted works contained in the news materials. The forms of usage permissible under law will continue to be determined pursuant to the provisions relevant thereto, in §§ 44a ff. UrhG.

The result is to protect the news publisher against systematic use of its publishing activity on the part of commercial providers of search engines and commercial services that provide content in a similar fashion; both kinds of provider have designed their specific business model around this form of use.

Unaffected by the new legislation, then, are other users such as e.g. bloggers, companies of other commercial purposes, associations, law firms or private and unpaid users. Consequently, these proposed ancillary copyright protections for news publishers will have no impact with regard to their rights and interests.

Under the language of paragraph 4 clause 2, the provisions that, in Part 1 Section 6 of the Copyright Act, limit the exclusive rights of the author of a work, will apply accordingly in the case of ancillary copyright for news publishers. Most importantly, this retains an important right in the news area: the right to cite published materials under § 51 UrhG, provided that the specific point made is the basis for the quotation.

Concerning § 87h

The proposed provision also takes due account of the interests of authors in that it expressly provides for an author’s claim to a share in the proceeds that issue from use of the ancillary copyright. This reiterates the constitutionally founded judgement, expressed in §§ 11 and 32 UrhG, according to which the author must have a reasonable share in the proceeds of every revenue-generating use of his or her work.

Concerning Article 2 (Effective Date)

Article 2 specifies the date on which the legislation is to go into effect. The period of transition is designed to permit an adjustment in copyright practises to the new legal situation.


Name of Document:
Draft Legislation for Seventh Revision of the Copyright Act of the Federal Republic of Germany
Drawn up by: German Federal Ministry of Justice

 

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