Earlier this year, a new,
more restrictive copyright law was passed in Germany that gave publishers near total control over the use of their content (there’s no “fair use” doctrine in Germany). It was championed by large magazine publishers and newspapers that believed they were being “disintermediated” by search engines and others that were commercially exploiting their content.
Google was a prime target of their complaints and the new law.
German publishers had hoped to establish a licensing marketplace for their content. Indeed, when the law passed the European Publishers Council issued a statement saying the following:
The European Publishers Council (EPC) welcomes today’s decision by the German Bundestag to approve an ancillary copyright for news publishers in law that means that search engines and other aggregators who commercialise publishers’ content will no longer be able to do so without permission. The “Leistungsschutzrecht,” as it is known in German, will pave the way for commercial negotiations between the parties on the price for the commercial use of publishers’ content . . . The new law will only apply to those companies who exploit commercially third party content such as content aggregators and search engines. The proposed provision signifies no change at all to possible uses by other users, or for consumers, bloggers or companies and associations who may use links or cite passages of published content.News publishers can now demand that search engines and other providers of such services that aggregate their content, refrain from unauthorised forms of usage. These companies will need licences for such usage in the future.The EPC believes that this law will help establish a market for aggregator content. New innovative business models can now be built based on legally licensed content.
The law still allows news aggregators and search engines to show “single words” and modest “text excerpts” but it also creates legal uncertainty and thus potential liability for those who misinterpret the law. (What qualifies as a “text excerpt”?) For this reason, Google is now asking German publishers to opt-in to be indexed in Google News so that there can be no confusion about their consent.
The opt-in will happen via Google News tools. Publishers are being asked to indicate their desire to have their content included on Google by August or be removed from the News index.
This approach will enable Google avoid copyright infringement claims and, presumably, any license fees that publishers were hoping to impose on the company. The publishers who celebrated the new law are likely to be very frustrated by Google’s move.
The opt-in system is only being put in place in Germany. Google will continue to use opt-out methods (robots.txt and metatags) in other countries when publishers don’t want content to be included in Google News.
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