Neighbouring right for newspaper publishers in Germany: Draft bill proposed

Juni 17, 2012

The German Ministry of Justice has published an extremely controversial draft amendment to the Copyright Act that would grant a new neighbouring right to press publishers last week.

The proposed sec. 87f of the German Copyright Act would grant the producer of a “press publication” the exclusive right to make the publication available online for commercial purposes.

The definition of “press publication” includes journalistic, professionally edited blogs but not blogs that serve mainly “self-marketing purposes”. Thus, the bill is clearly aimed at enabling newspaper publishers to charge Google and other news aggregators for using snippets and headings of newspaper articles. However, bloggers using “press publications” will also be considered to be acting for commercial purposes if their blog serves marketing purposes or includes advertisements according to the explanantory statement on the draft by the Ministry. Accordingly, many bloggers will have to obtain licenses or refrain from making references to press publications without being able to enjoy the protection of the right for their own articles.

The authors of the draft explicitly state that the right should apply even to smallest parts of a press publication. According to the explanatory statement, the reasoning of a decision by the German Federal Court on sound recordings should apply accordingly. That decision prohibits the use even of tiniest bits of a sound recording for sampling (BGH, 20 November 2008 – I ZR 12/06 “Metall auf Metall”). This would constitute the decisive difference to current law. Currently publishers cannot rely on a specific neighbouring right designed to protect their investment in the publication. They have to rely on the copyrights assigned to them by their authors. Under current copyright law, small parts of a text are in general incapable of being protected by copyright. While the European Court of Justice had opened the door towards lowering the originality requirements by stating in 2009 (decision dated 16 July 2009, C-5-08, “Infopaq I”) that a sequence of eleven words may well be copyrighteable if sufficiently original, the German Federal Court has declared in 2011 that short passages of text will in almost all cases not be sufficiently original (decision dated 1 Dec 2010 – I ZR 12/08, “Perlentaucher”).

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