Yesterday, the copyright arbitration board of the German Patent and Trademark Office (GPTO) released its ruling on the "tariff news publishers". The outcome: The tariff is inadequate, thus unlawful. The ancillary copyright for press publishers remains pointless.
In 2013, German publishers were granted their own ancillary copyright. It (only) allows them to ask providers of search engines or other news aggregators to pay a fee whenever they display parts of their news article. Several German news publishers have "transferred" their ancillary copyright to a collecting society called VG Media. This society then prepared a special tariff (Tarif Presseverleger) regulating the fee. It demands the mentioned providers to pay 11% of their annual turnover they make directly or indirectly with displaying snippets of news articles. But for the moment, the percentage is lowered to exactly 6.1084 as the VG Media represents about half of the German publishers. In case of Google - the main target - this is still a nine-figure amount.
Now, the GPTO decided that the tariff "is not adequate in its current form". The calculation basis was too broadly defined. Therefore, the tariff is unlawful and has to be revised. The arbitration board has not made any strict provisions but suggested a fixed compensation for every use.
The law establishing the ancillary copyright for press publishers includes an exception for "single words and smallest snippets". The legislator has not specified what that means in particular. Various law professionals have stated their opinions - ranging from "only 3 words", "only the headline" to the "156 signs Google allows for snippets". In the eyes of the GPTO, a specific limit is necessary. They suggest seven words excluding search keywords. This obviously is a compromise between the remuneration interest of the VG Media and the scope of the exception.
In the end, the ruling illustrates that there is something conceptually wrong with the ancillary copyright for press publishers: A seven words short snippet is highly impractical for users as one can barely see what the linked text is all about. In consequence, information (= knowledge) cannot be found and spread as easy as it should in a modern world. The publishers loose clicks hence money. Google will not pay any money due to this ancillary copyright. And why should they? It is the search engines and news aggregators who navigate the users to the publisher's sites. Demanding them to pay a fee is like asking the taxi driver to pay the restaurant for bringing hungry guests. Currently, Google does not show any snippet unless the company is granted a free permission. The Federal Cartel Office has already declared this proceeding as legal. Furthermore, Google cannot be forced to show snippets - and then pay the fee - by cartel law. As a result, the ancillary copyright for press publishers harms every side and was a waste of public money.
It remains to be seen if the parties accept the ruling. If they do not, the dispute carries on to the regional court and will not find an end before the Federal High Court of Justice has ruled years later. It is time to lay the project "ancillary copyright for press publishers" to rest.