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Bundestag holds 'unusual' hearing on German Copyright Act

Expert: May indicate parliamentary 'push-back' on copyright reform

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A "highly unusual" additional parliamentary hearing on proposed changes to German copyright law is a sign that there is increasing opposition to the publisher-driven plans, an expert has said.

A cross-party sub committee on new media is scheduled to stage a hearing of stakeholders' views on the proposed amendments to the German Copyright Act in the Bundestag on Monday. The reforms, if introduced as originally drafted, would force Google, as well as other search engines and content aggregators to pay publishers in order to display snippets of their content. Google launched a marketing campaign against the proposal German copyright reforms in November last year.

Copyright law specialist Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said that the hearing was procedurally uncommon because it will be the second special commission to stage a hearing on proposed changes to the law. Usually just one Bundestag committee will stage a hearing on proposed changes to German law, he said.

The Bundestag's committee on legal affairs, which comprises 37 MPs and which was originally responsible for scrutinising the proposed reforms, previously conducted a hearing in the parliament in which legal professors, lawyers and representatives from German publishing bodies aired their views on the draft laws.

Munich-based Barabash said that the fact a second special commission was holding a hearing on the proposed copyright law amendments indicated that MPs in the Bundestag may have doubts about pushing through the reforms.

"Ordinarily when draft legislation is brought before the Bundestag there is a first hearing before the parliament before the draft goes before a special commission for scrutiny," he said. "It is common for the special commission to make amendments to the way the proposed legislation is drafted. The revised proposals then go back before the Bundestag for a second hearing at which stage most laws are passed. If a law does not pass in the second hearing there may be a third hearing so that the legislation can be voted through."

"In the case of these copyright reforms, the first Bundestag hearing has passed and the legal affairs committee has also already held its own hearing," Barabash added. "However, there is now an additional special commission hearing scheduled for Monday as the sub-committee on new media consider the plans. It is highly unusual to have a second special commission hearing."

"I think that this is rather a sign that there is a growing push-back against the plans from the Bundestag," the expert said. "I cannot say whether this is because of the Google, or any other, campaign or just because the issue seems to be very important."

Barabash said that although there have not been huge public protests against the proposed changes to the law, lawyers, academics and others had started to adopt "the same or similar arguments Google and other news aggregators and search engines" have raised, which may be causing MPs to further scrutinise the proposals.

The proposed new section to the German Copyright Act would, if introduced, provide the "producer of news materials" with the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.

Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".

Website browser manufacturer Mozilla has previously said that the proposals "may be bad for users and the web" because it could restrict the free flow of information across the internet. The Max-Planck Institute for Intellectual Property and Unfair Competition Law in Germany has also previously said that the "need for such law has not been proved so far" and that the German government therefore "lacks any basis" to adopt the proposals.

Barabash previously outlined the reasons publishers have expressed for wanting the Copyright Act in Germany to be altered.

"The publishers no longer want to see their actual work and their performance being 'pirated' by Google and other service providers," Barabash said in November last year. "The argument is that all the work is done by the publishers and that Google et al are making money by using this work free of charge.

"The second argument is a legal one: according to the German Copyright Act two different kinds of rights exist: the copyright belonging to the author of the work, such as an artist or musician, and the so called 'ancillary rights' for people involved in the creation of a copyrighted work but not providing the 'creative' part of the service, such as a music producer or director of a movie. Such an ancillary right does not exist for publishers. This legal protection gap is the second argument behind why the publishers want the introduction of this similar ancillary right for themselves."

Copyright © 2013, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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