Ancillary copyright madness in Germany and France

By EDRi · September 26, 2012

This article is also available in:
Deutsch: [Leistungsschutzwahn in Deutschland und Frankreich |]

On 29 August 2012, the German government decided to pass a draft
legislative proposal for ancillary copyright (so-called
“Leistungsschutzrecht”) aimed at “protecting” publishing houses’ online
content from being quoted in news aggregation sites and on search engines.

This draft law would give publishers the right to limit or forbid any
publication or reproduction by third parties of snippets of their
content. Services (Google in particular) which publish (or “steal”) even
very small parts or snippets as a means of helping end-users find
interesting information would have to obtain a license and pay a tax in
order to do so. The law would have an extensive impact since any
website, aggregator or blog could be affected by this.

A couple of years ago, German publishers suddenly realised that there
were companies on the internet which make billions of Euro from
advertising. Advertising has traditionally been the publishers’ business
model and they have failed to adapt this part of their business to the
online environment. They therefore argue that companies that are able to
make money in the digital environment should subsidise their
pre-existing business model. Ironically, though, those companies are
still able to make significant profits. For example, Germany’s biggest
publisher Axel Springer recently announced an increase in 55% for its
online products in the first half of 2012.

Just a few days ago, French magazine Télé revealed a draft
proposal written by the press association IPG and inspired by the
developments in Germany, in order to tax Google and cream off its
billion euro profits in France. The draft “lex Google” wants to give
publishers the exclusive right to reproduce snippets from articles,
under penalty of a fine of 30 000 euro and 3 years imprisonment for

The somewhat incomprehensive German and French provisions create a
disincentive for online companies to help people find the publishers’
online content and “compensate” the publishers when their content is
found. Following the same logic, concert venues could ban taxi drivers
to take people to their concerts, unless they pay “compensation” to the
venue for bringing customers to their doors. In an environment where
expensive, disjointed and out-of-date copyright law is already causing
significant damage to the European economy, this approach may be a joke,
but it certainly is not funny.

Civil society groups as well as the German association of internet
economy eco have highlighted the absurdities and negative consequences
of ancillary copyright provisions repeatedly. They have pointed out that
the current terms of the law are more than unclear, that it is difficult
to establish what makes a website “commercial” and therefore leads to
legal uncertainty. In addition, the current German draft would restrict
the diversity of information on the internet. Civil society groups have
also pointed out the complete superfluousness of such provisions –
publishers are already protected by copyright provisions and are given
extensive rights by journalists through contracts or general terms and

Due to the vague definition of a “press product”, search engines would
need to conclude thousands of individual contracts. Smaller publishers
and bloggers do not have the capacity to do the same. It is thus likely
to result in adverse effects: a creation of exceptions for monopolies,
leading to an uncompetitive market situation. Ultimately, this will also
limit the freedom of communication and freedom to do business.

3rd revision of the German draft proposal (only in German)

Axel Springer online profit (only in German, 8.08.2012)

eco Comments on Planned Ancillary Copyright (10.07.2012)

Télérama reveals press publishers’ project (only in French, 21.09.2012),87027.php

Common declaration of French and German publishers (only in German, 19.09.2012)

(Contribution by Kirsten Fiedler – EDRi)