German copyright bill passes parliament

Leistungsschutzrecht calls for charging aggregators that repost publishers' content

Germany’s national parliament approved a controversial bill on Friday that would require news aggregators, such as Google, to pay for the right to use original content published by newspapers on their websites. The bill, which has been closely followed by the rest of the continent, would only affect commercial use.

Although the Leistungsschutzrecht, known as LSR, passed with a 293 to 243 majority, six parliamentarians broke party lines to vote against a bill they believe would hinder innovation on the Internet and impede free speech. At least three members of the ruling conservative coalition tweeted photos of their no votes. Another three — including two from the ruling party — abstained.

“This is not a reasoned bill,” Thomas Oppermann, a member of the opposition Social Democrats said during the hourlong debate. “It is a payoff for the publishers on the one hand and a question of free expression on the other.”

Thomas Silberhorn, a member of the ruling coalition Christian Democrats, disagreed. “The market will be regulated. Free speech will not,” he said.

What won the day for the content publishers was a Tuesday night agreement to water down the legislation so that it narrowly defines what the new law affects. Snippets, those brief extracts that pop up in a search, for instance, have been removed. Under the new wording, commercial use of a still-undefined number of words would be subject to a fee, akin to a music royalty, payable to the original website that published the content. Publishers, not journalists, would receive the royalties.

It is still unclear exactly how the system would work. Publishers and search companies are now expected to negotiate the technicalities, Silberhorn said.

That is a disaster waiting to happen, opposing parliamentarians hollered during the pre-vote debate, which was livestreamed over the Internet. They predicted that the bill will now be bogged down for years in negotiations. In the meantime, startup companies may feel uncertain as to whether the law would affect them.

The debate is being followed throughout Europe — publisher groups in Scandinavia, Italy, Switzerland, and Austria have said they would be interested in introducing similar laws in their countries.

“Everyone is watching and waiting to see what is happening in Germany,” Francine Cunningham, executive director of the European Newspaper Publishers Association, said in a telephone interview.

The bill will now go to the Bundesrat, the upper house of parliament on March 6, where it may meet with strong opposition. Several observers said they believed it would also wind up in court to determine whether the law is constitutional.

“This proposal is bad for the Internet in Germany, because it stops innovation,” Google Germany’s spokesman, Kay Oberbeck, wrote in an emailed statement. “While some of the worst aspects have been changed, it still creates huge legal uncertainty, particularly for start-ups. We hope the upper house further changes the draft law or stops it all together.”

In addition to the search engines, two journalism organizations, the Association of German Industry, and virtually all digital companies opposed the bill, saying it would hinder innovation, create a cumbersome bureaucracy, and ultimately may not help publishers survive the changeover to digital.

Instead of legislation, publishers in Belgium and France have negotiated partnerships with Google to find ways to innovate on the Web. In an agreement signed by French President Francois Holland and Google CEO Eric Schmidt earlier this year, the California search engine will invest 60 million euros in France to assist publishers in making the transition to the Internet and finding new revenue sources. Several speakers alluded to this agreement as a possible way forward for Germany as well, but that becomes irrelevant if the bill ends up succeeding.

The German Journalists Union cautiously spoke in favor of the law at a hearing, but asked for changes. Because those did not come, the group now opposes the law, said group president Michael Konken. As the law currently stands, LSR protects only publishers.

“It would be absurd if our interests only appear as a footnote in the law,” he said in a statement.

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Alison Langley has more than 25 years experience in journalism as a reporter and editor. Her stories have appeared in a variety of publications, including The New York Times, The Guardian, The FT and The Independent. She currently lectures in journalism at Fachhochschule Wien and Webster University Vienna.