Some German media outlets question Google's right to publish, without payment, snippets of news stories in search results

Some German media outlets question Google's right to publish, without payment, snippets of news stories in search results

German publishers are hitting the headlines all over the world with their fight against Google. The Economist has described Germany’s attitude as “Googlephobia” and The New York Times recently compared the nation’s angst to “Luddites,” the English textile workers who protested against machinery replacing their labor.

A major part of this discussion is the new and controversial ancillary copyright law (Leistungsschutzrecht). The law permits German publishers to charge online news aggregators such as Google News for reproducing parts of their content. Just at the end of the legislative process, the law was watered down to allow news aggregators to display “very short excerpts” of news articles for free. Nobody, including the German Ministry of Justice, knows exactly how long “very short excerpts” actually are or whether they are the same as snippets. Google responded by opting all German publishers out of Google News and asking them to waive their right to compensation if they opted back in. In summer 2014, VG Media, an umbrella group of German publishers including the powerful Axel Springer Group, decided to sue Google for allegedly failing to implement the law. In return, Google ratcheted up its response: the search engine had planned to stop publishing snippets and photographs from these publishers on October 23. Google had intended just to supply links and headlines—not only in Google News but in all of Google’s services. On October 22, however, VG Media decided to allow Google to show snippets for free; VG Media publishers stated that they felt “forced to take this unusual step given the overwhelming market force of Google.” Although implementation remains disputed, other countries such as Spain are looking to the German example as a guide for creating their own “Google tax.”

Amidst all the proclamations of the legal novelty in these cases, everyone has forgotten to look back before the Internet. And they have overlooked a surprisingly similar attempt to use law to protect news. The first wireless technology—radio—created eerily parallel debates and legislative measures. Starting in 1927, the German government and publishers strove to promulgate a law to protect news, particularly from “theft” by radio listeners. The law floundered by 1933 for reasons that are remarkably familiar to our contemporary debate. But the parallels between the interwar period and the present are more than just a curious historical phenomenon. They tell us what will and will not work when news providers try to secure their business from new technologies.

New Competition

In the 1920s, contemporaries found themselves faced with a similarly revolutionary technology—the radio. News agencies used radio to distribute news to newspapers as quickly as possible. But normal radio listeners could listen to that news and copy it. Like Internet snippets and links for publishers today, news agencies saw this as an existential threat to their business model. The general manager of the Associated Press, Kent Cooper, feared “news theft” by cunning competitors who would exploit the “fruits” of the Associated Press’s labor. Others in Germany compared copying news to stealing material objects and demanded some form of legal protection.

Today, publishers describe the issue with the same vocabulary. Rupert Murdoch called Google and other search engines “content kleptomaniacs” in 2009, while Axel Springer’s chief executive, Mathias Döpfner, compared Google’s business model to “shoplifting.” Both in the 1920s and today, however, it was practically impossible to prove who was copying whom or even, where the information was coming from. Then as now, it was easier to claim that rampant theft was happening than to prove it.

Pushing for Legislation

Newspapers have tried since at least 1855 to protect their products through copyright. In 1855, the editors of 14 prominent German newspapers along with the news agency, Wolff’s Telegraphisches Büro, petitioned the Federal Convention (Bundesversammlung) to request better copyright protection to stop smaller newspapers from copying news telegrams for 24 hours after publication. It was to no avail. International conferences on copyright to create the Berne Convention in the 1880s also explicitly excluded “news matter or current topics (faits divers).”

One of the next international opportunities to discuss news arose in 1927 at the Conference of Press Experts sponsored by the League of Nations. International representatives from the press and politics had gathered to coordinate on cross-border problems facing journalists. Protecting news was “one of the most important, if not the most important item on the agenda” for Germans, as the head of the largest German news agency, Wolff’s Telegraphisches Büro, put it.

Today too, judicial measures seem similarly momentous. Bodo Hombach, former managing director of the WAZ media group, has called German ancillary copyright law “the most important political initiative for media for decades,” while the law’s “strategic significance can hardly be overestimated” in Mathias Döpfner’s eyes.

Then as now, the press and politicians cooperated on the issue. In the 1920s, the German government hoped to cast Germany as a legal pioneer through innovative legislation on news. The current law emerged partially from lobbying by the biggest European publisher, Axel Springer. Springer helped to develop the idea of regulating news and ensure that it landed on the desks of the relevant ministers. After the German election in 2009, the coalition contract between Germany’s then two ruling parties, the CDU/CSU and FDP, included a clause promising to promulgate a law to protect news.

Internationally, news offered a chance for German governments to make themselves heard on the global stage. In the 1920s, the Foreign Office and Interior Ministry hoped that a national German law would serve as a model for other countries just as German politicians today see themselves at the forefront of the fight against Internet corporations’ invasion of privacy and “brutal information capitalism.”

Drafting Law

Delegates from around the world fiercely debated the protection of news at the Conference of Press Experts in 1927, finally agreeing that unpublished news should be internationally protected. Each country was allowed, however, to regulate published news on the national level.

The German government set to work on a national law to protect “mixed news of factual content and news of the day.” For government officials, the law offered a chance to cement the social role of the press while protecting publishers’ economic interests from the new technology of radio and international competition. The justification for the law declared that “an effective, self-sufficient and independent German news service” lay very much “in the public interest.” But German publishers and news agencies were consulted extensively during the drafting period and their fingerprints were all over the subsequent legislation.

Today’s debate too revolves implicitly around connecting the social importance of news and publishers’ financial health. Publishers have framed the discussion around the ancillary copyright law as a battle for “quality journalism” and the public interest.

But publishers’ own bottom line is at the top of their agenda too. Springer’s political presence in Berlin is far greater than any American publisher could imagine in Washington. Publishers and their associations exerted extensive political pressure and even created their own draft law in late 2009, presumably to serve as a model for the German government’s legislative efforts.

Disagreements and Difficulties

The two laws also produced surprisingly similar discussions and ambiguities. To start with, even in the 1920s, no one could agree on whom the law should protect. The first German draft law foresaw protection only for authors of news items. Bloggers might have seemed to upend our definition of a journalist, but in the late 1920s too, some government officials expressed concern about how to define the authors of news. Did retired civil servants who supplied news count as professionals, for example? Later drafts changed the language to protect all “professional collectors of news,” as this included freelance journalists as well. Originally, today’s ancillary copyright law was only supposed to protect publishers. But after protests from bloggers and others, the law now protects anything “characteristic of a publisher.”

Nor could anyone agree on how long to protect news. How long was long enough—12, 18, or 24 hours after publication? It was not even clear when exactly publication took place—when a news item arrived at a newspaper office or when a newspaper landed in the hands of a reader? Many newspapers at the time also published several editions daily. The timing varied somewhat, making it impossible to determine in retrospect exactly when a certain number of hours since publication had actually passed on a particular day.

Today, the ancillary copyright law protects news for a year. During discussions, however, journalists’ trade unions had suggested protecting news for 15 years, while publishers had hoped for 50.

The law has also remained vague about who exactly counts as a search engine or as a news provider. Contemporary critics have argued that these ambiguities will benefit one group in particular—the legal profession—who will spend plenty of billable hours over the next few years engaged in juridical wrangling. Ironically, the German publishers’ association in the interwar period also warned that a law would lead to “a flood of trials” that it did not want.

Then as now, many journalists were skeptical of using the law to protect news. In the 1920s, journalists outside the consultation process began to question the law’s rationale entirely. Some believed, like many today, that current laws of copyright or unfair competition provided enough protection.

Others thought that the law would simply consolidate the position of the major players in the news business, particularly news agencies and the inner circle of larger newspapers. One journalist argued that current law prevented news monopolies: news on important events reached the “widest public” of all German people because smaller newspapers could appropriate reporting from larger publications.

Back to the Future

After drafting and redrafting for four years, the German government finally issued a public draft in April 1932. But the draft never became law. The Nazis gained power a few months later and wholly restructured the national press. In 1936, Nazi media officials would claim that Germany no longer required legislation: the new structure of the German press provided such effective protection that a law was superfluous.

The current developments have ended very differently, of course. In March 2013, the German parliament ratified the ancillary copyright law. But the protagonists, their successful strategies, and the resulting legal ambiguities are strikingly similar despite the 80 years separating them.

In the end, discussions about protecting news have always tried to strike a balance between public and private interests. News has a social function, but news providers are also trying to protect their business models. So whose understanding of news will win out? Should we focus on protecting the rights of news providers who finance and organize the production of news or should we concentrate on distributing news to as many people as possible? Are contemporary news publishers “too big to fail” or will property rights strangle entrepreneurial journalism?

The Germans have to find answers to these questions. However, history teaches us that laws alone may not be the best response.

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