Neighbouring Right for Newspaper Publishers in Germany Passed

März 27, 2013

The amendment to the German Copyright Act granting news publishers a new neighbouring right has passed the German Parliament in March 2013. The law has not yet been proclaimed. It shall come into effect on the first day of the third calendar month following proclamation. UPDATE: The amendment has been proclaimed on 7 May 2013 and will come into effect on 1 August 2013.

 Here is my completely unofficial translation of the new provisions of the German Copyright Act:

 

Ҥ 87f

Press Publisher

 (1)  The producer of a press publication (press publisher) has the exclusive right to make the press publication or parts of it available to the public for commercial purposes, unless the parts concerned are merely individual words or smallest excerpts. If the press publication has been produced by a company the owner of the company shall be considered to be the producer.

(2)  A press publication is the editorial and technical arrangement of journalistic articles in the framework of a collection which is

  • published periodically under one title on any medium,
  • considered to be predominantly characteristic of a publisher when assessing all circumstances of the individual case, and
  • does not serve mainly self-marketing purposes.

Journalistic articles are, in particular, articles and pictures serving the purposes of conveying information, forming opinions, or entertainment.

 

§ 87g

Transferability, Duration and Limitations of the Right

 (1)  The press publisher’s right pursuant to § 87f (1), 1st sentence can be transferred. Sections 31 and 33 apply accordingly.

(2)  The right expires one year after the publication of the press publication.

(3)  The press publisher’s right cannot be asserted to the detriment of the author or of a holder of a neighbouring right to a work or to another object of protection under this Act that is contained in the press publication.

(4)  The making available of press publications or parts thereof is permitted as far as it is not performed by commercial providers of search engines or commercial service providers that reprocess content accordingly. Furthermore, the provisions of Part 1 Subsection 6 apply accordingly.

§ 87h

Author’s Remuneration Claim

The author shall receive a fair share of any remuneration.”

 

 § 87f (1) was amended virtually at the last minute and now excludes “individual words and smallest excerpts”. Furthermore, the Ministry of Justice declares in its explanatory statement attached to the draft bill (version of November 2012, BT-Drs. 17/11470) that the right will not apply to internet links consisting of text fragments. 

The highest German civil court, the Bundesgerichtshof, has previously denied copyright protection to very short text excerpts in its “Perlentaucher” decision. Therefore, it was widely thought that covering extremely short excepts was one of the main aims of the bill. Now the courts will have the rewarding task of differentiating between “smallest excerpts” (which remain unprotected) and merely “small excerpts” (which are protected).  The meaning of the numerous other vague terms used in § 87f and 87 g is equally unclear.

The limitation in § 87g (4) is interpreted by the Ministry of Justice in the explanatory statement as follows (again, my unofficial translation):

 “Thus, the press publisher is protected against the systematic use of his editorial activity by commercial providers of search engines and commercial services that process content accordingly whose business model centers on such use. Other users, e.g., bloggers, other privately owned companies, associations, law firms or persons working for private purposes or on a complimentary basis are not covered. Their rights and interests therefore remain unaffected by the proposed neighbouring right for publishers.”

 The groups mentioned here whose rights and interests remain unaffected by the new law appear to include more or less everyone who expressed his and her concerns regarding the first draft of the bill (note that law firms are also explicitly mentioned), with the obvious exception of Google and other news aggregators.

 

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Diese(s) Werk bzw. Inhalt von Ulrike Elteste steht unter einer Creative Commons Namensnennung 3.0 Deutschland Lizenz.

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