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 Télérama.fr 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 offenders.

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 In an environment where expensive, disjointed and out-of-date copyright law is already causing significant damage to the European economy, this approach may be a joke, but it certainly is not funny.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 conditions.

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)
http://irights.info/userfiles/3_%20Referentenentwurf-LSR-Kabinettsfass...

Axel Springer online profit (only in German, 8.08.2012)
http://www.welt.de/wirtschaft/article108532273/Axel-Springer-steigert-...

eco Comments on Planned Ancillary Copyright (10.07.2012)
http://international.eco.de/2012/news/eco-comments-on-planned-ancillar...

Télérama reveals press publishers' project (only in French, 21.09.2012)
http://www.telerama.fr/medias/taxe-google-telerama-devoile-le-projet-d...

Common declaration of French and German publishers (only in German, 19.09.2012)
http://www.bdzv.de/fileadmin/bdzv_hauptseite/aktuell/bdzv_branchendien...

(Contribution by Kirsten Fiedler - EDRi)