Google News switches to "Opt-In" in Germany to avoid copyright fees

Google recently announced to make its 'Google News' service "opt-in" instead of  "opt-out" in Germany as of 1 August 2013. This decision by Google is a direct reaction to a new German copyright law that will take effect as of the same date. In practice, this means that Google News will only show results from those German news media that have explicitly consented to Google processing and showing their data in its news aggregation service.

Before 1 August 2013, Google's stand was that it automatically presented snippets of German news media in its Google News index, except when confronted with an explicit wish of a media publisher not to be included (for instance, through a notification sent to Google, or through use of technical means such as robot.txt files or metatags to prevent indexation and/or publication by Google). In the rest of the world where Google News is operative,[1] the service remains in principle "opt-out", not "opt-in". 

Search engines

It is clear that the principle of "prior consent" (following which a work that is protected by copyright[2] can only be reproduced if the copyright holder has given his or her prior authorisation to do so) is difficult to align with the way the internet works. Various courts in Europe and the United States have already mitigated the "prior consent" or "prior authorization" requirement, especially in cases involving search engines.[3] As is commonly known, search engines copy and republish at least a part of the various websites that they index. In theory, this may lead to copyright infringement.[4] In practice, this almost never causes serious legal problems since judges are smart and flexible enough to realize that copying and republication is inherent to the activities of search engines, and that the internet would not function properly without good-functioning search engines.

News aggregators

However, a news aggregator (such as "Google News") is not the same type of service as a search engine, and courts in various European countries have insisted on the applicability of the "prior consent" requirement vis-à-vis news aggregation services. This was for instance the case in the famous Copiepresse versus Google case in Belgium, whereby Google was condemned for having breached the copyrights of the Belgian French-language newspapers through its "Google News" service.[5]

New German law on the ancillary copyright for press publishers ("Leistungsschutzrecht für Presseverlage")

The German bill on ancillary copyright for press publishers gives publishers the exclusive right to commercialise their products or parts thereof, except in case of single words or small text snippets.[6] However, the new law does not define the word "snippet." As a consequence, it is unclear how many characters a snippet should contain to fall under the scope of the new law. Given the uncertainties under the new German law, Google decided to change tack and switch its news aggregation service to "opt-in" instead of "opt-out" in Germany (see Google's new "Bestätigungssystem"). This means that if a German publisher does not explicitly consent with Google processing its content, the content will not be shown in any edition of Google News (e.g., it will also be left out of the other German-language versions of Google News, such as the Austrian, Swiss and Belgian versions).

Some German publishers seem to welcome Google's new "opt-in" system because of the control it gives them over their content. Many of them will without doubt choose to remain included in Google News (it gives them visibility and internet traffick (or clicks)). Other publishers insist that they want a share in the revenue Google is making by using their content. It is clear that Google, by introducing its new "opt-in" system wants to avoid having to pay any kind of license fee to the German publishers. For the time being, Google News seems to remain a free service in Germany that does not contain sponsored advertising, so it is somewhat unclear what revenue German publishers are targeting. Google for its part is claiming that it channels a huge amount of visitors to the websites of the German publishers for free, so that Google News in fact adds economic value to German publishers rather than harming their business.

EU procedure

After receiving complaints about the new German law, the European Commission decided to ask Germany for more information about the act to verify its compliance with EU legislation. It is not yet clear how far the Commission will go in its investigation, but some sources announce that this procedure can delay the adoption process of the bill with up to 18 months.

For more information regarding the above, do not hesitate to contact me.

Author: Bart Van Besien

Finnian & Columba

Belgium

bart@finnian.be

[1] According to Google, the service remains "opt-out" in over 60 countries and languages.

[2] Or "author's rights" in the European continental tradition.

[3] Less so or not at all with regard to other services (e.g. the Google Book Settlement case).

[4] In various European countries, it has proved to be difficult to apply the traditional copyright exceptions, exemptions or limitations to search engines. The EU Electronic Commerce Directive 2000/31/EC of 8 June 2000 does not include a specific exemption of liability for search engine providers, but certain EU member states (such as Spain, Portugal and Austria) have covered this in their national legislation (Belgium has not done so).

[5] See Court of Appeal of Brussels, decision of 5^th of May 2011.

[6] For more information on the new German act, see https://www.bundesrat.de/cln_330/SharedDocs/TO/908/erl/16,templateId=raw,property=publicationFile.pdf/16.pdf.