Constitutional Challenge to the German ‘Snippet Law’

August 14, 2014

One year ago the German ancillary copyright for press publishers, the Leistungsschutzrecht, came into effect. With that law, Germany became something like a pioneer – the first country in the European Union attempting to rectify a perceived imbalance between digital news aggregators and news publishers via legislation. The logic behind the law is that news aggregators unfairly benefit from the intellectual works of publishers by displaying hyperlinks and, more importantly, snippets in search results. Accordingly, from 1st August 2013 news aggregation services are required to pay licensing fees for the use of snippets.

That, however, seems to remain theoretical. While some German news publishers were busy with establishing a collecting society for implementing their new right under the law, enforcing the right will certainly face some considerable hurdles. Going beyond the very questionable (or rather unacceptable) purpose of the law, the reason is very simple: the law is unclear. Hence it specifically excludes from its scope the display of “individual words” and “smallest text excerpts”.

This legal uncertainty caused Yahoo! to challenge the law by filing a complaint with the German constitutional court. According to Yahoo!, the law leaves too much legal uncertainty which has caused the company to change its display of search results in Germany. In addition, the complaint argues that the law infringes Internet users’ fundamental right to access information. Given the central role of search engines in finding relevant information quickly and efficiently, this argument certainly carries weight.

The German constitutional court’s ruling could be a landmark ruling, not only for Germany but also for the EU. It remains to be seen in how far the court will go to also address issues that go beyond the wording of the law. The are some questions unanswered as to the overall purpose of the law (does it amount to discrimination of certain market participants?) and to the implications of recent court rulings of the Court of Justice of the EU.

In February this year that court ruled that hyperlinking to publicly accessible content does not require the consent of the right owner. Snippets were not at stake but one can legitimately ask how Internet users are supposed to effectively access information they are looking for on the basis of hyperlinks only.

While we have a constitutional complaint against the German law, the Spanish government is on track to adopt its own ancillary copyright which in many ways is even worse than the German firstling. It would not be limited to professional ‘press products’ but arguably apply to all content on the Internet and on top of that would operate like a levy, i.e. a tax on online businesses. Obviously, it would raise the some constitutional questions as in Germany.

But looking beyond the nitty-gritty of these laws, policymakers still have to answer the most fundamental question of all: which problem exactly are ancillary copyright proposals supposed to solve?

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