1. The ancillary copyright for press publishers in Germany has failed.
Quite the opposite. The ancillary copyright for press publishers was passed by the German Federal Parliament and has been in force as law since 1 August 2013. The disregard of a law by a single search engine with market power doesn’t constitute the law’s failure. Rather, the law must then be enforced through designated legal process in the competent courts. The Arbitration Board of the German Patent and Trademark Office, which hears such cases before they can go to court, has confirmed the applicability of the ancillary copyright for press publishers.
2. The ancillary copyright threatens the link. The freedom of the internet is in danger.
Links are always free and nobody is in danger. In 2003, Germany’s Federal Court of Justice ruled that a link cannot constitute a copyright violation (judgement of 17 June 2003; ‘Paperboy’). This is the guiding principle of the ancillary copyright for press publishers as well. To ensure that the link is recognisable, the ancillary copyright exempts ‘individual words and very small text excerpts’ used to describe the link. The Arbitration Board of the German Patent and Trademark Office has suggested a limit of seven words as an interpretation of this unspecific legal definition.
3. The ancillary copyright is a Google tax.
The ancillary copyright for press publishers is not a tax. The law protects press publishers’ journalistic right of ownership to their products and, with that, to their publishing services. Its aim is the fair balancing of interests between the producers of publishing content and those parties who use these products for profit in their online services. Without legal protection of ownership of publishing products, investment and jobs in journalism and, ultimately, press freedom itself, are at risk.
4. The ancillary copyright hinders innovation in the media sector.
Not true. It is the publishers themselves who invest in digital content. An enforceable right of ownership is a necessary basis for sustainable investment in new business models and thus in the ongoing development of journalism in the digital age. Revenues from the ancillary copyright law are urgently needed for the financing of further new content and innovation.
5. Authors don’t receive a share of the payments to the press publishers.
Section 87h of the German copyright act states: ‘The author must receive an appropriate share of the revenue obtained.’ This is dependent on Google and other search engines and news aggregators recognising the law and paying the publishers the stipulated compensation. Through its resistance and the resulting years-long legal enforcement of the ancillary copyright, Google is obstructing the compensation of the authors.
6. The ancillary copyright disadvantages small internet companies and start-ups because big corporations like Google get free licences.
There is no such thing as a free licence. Google uses its market power to force publishers who insist on asserting their rights into granting uncompensated authorisation to use their products. It is precisely this abuse of market power that publishers have taken legal action against. The case is currently before the Court of Appeal in Berlin. Its aim is to ensure the equal treatment of all users. It should be noted that the payment amount corresponds to the sales volume: search engines and news aggregators with low sales volumes pay low compensation rates.