German news publishers are trying to require licensing fees to be paid to them for indexing their content by search companies through a proposal that may move forward in the German Parliament later this week.

This ‘ancillary copyright‘ (text here) law would require search engines and other purveyors of information on the internet (but not publishers of “journalistic citations”) to pay licensing fees for showing headlines and snippets of news articles. The proposal is bad policy, and also appears illegal under international law. 

This Thursday, the Parliament takes this bill up for a key vote, and if it moves forward there, it may spread around the continent. France is already exploring it and two weeks ago EU Commissioner Barnier focused on news publishers in a major copyright address.

Google is the clear target, and it today launched a petition in opposition ( in German only for now). There is also a broad coalition of groups that’s come together to stop it, but according to Derek Slater at Google “it’s got a real risk of passing in advance of federal elections next year.”

My views:

The proposal is bad policy that would stifle public discourse on the internet and likely hurt rather help German content providers (i.e. if the main result is that search engines to linking to German press).

Professor Michael Carroll, who teaches Cyberlaw at American University, described the proposal this way:

“This proposed law conflicts with the basic operating principles of the Internet and with the basic quotation right recognized in international intellectual property law. Imagine if this sort of law had been in place before the Web got started — would search engines have even come about in a world where you have to get permission to innovate?”

The proposed law would also be illegal under international law. Intellectual property law is more often than not filled with mandatory disciplines on domestic law that favor publishers and other copyright holders. But there is one provision that mandates a protection for consumers and users and makes possible much of what we have on the web today — Article 10 of the Berne Convention requires that countries allow “quotations from a work which has already been lawfully made available to the public.” In full, Article 10 provides:

“It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”

Germany’s proposal to tax quotations would almost certainly run afoul of Berne.

This is one clear example of the importance to consumers and important segments of US business of including mandatory limitations and exceptions in international intellectual property law, such as that being crafted in the Trans-Pacific Partnership.

It also raises an interesting question for the U.S. under the Special 301 review of foreign country IP laws — if Germany passes this proposal, will be denying U.S. companies like Google “adequate and effective” intellectual property protection ensuring “fair and equitable” market access? That would be a real test of the whether the U.S. takes a balanced approach in its much criticized implementation of the law.