Following an immensely heated public and media debate, the German Bundestag (Lower House) – on 1 March; and the Bundesrat (Upper House) – on 22 March; adopted the 8th Act Amending the German Copyright Act . The amending legislation will introduce a new neighbouring right for press publications, equal in strength to copyright. The new provisions will come into effect on 1 August 2013.
The 8th Act introduces the new sections 87f to 87h into the Copyright Act. The new section 87f(1) German Copyright Act provides that press publishers shall be protected – for a limited period of one year – against having their press publications made available to the public for commercial purposes. The object of section 87f(2) German Copyright Act is the “press publication”, defined as “the editorial-technical definition of journalistic contributions within the framework of a periodically published collection under a specific title regardless of the medium which, taking into account all relevant circumstances, are to be regarded as mainly typical for a publisher’s product and do not predominantly serve the purpose of self-marketing”. The section goes on to define journalistic articles as “mainly articles and images which serve to convey information, to shape opinion or to entertain”.
Furthermore, according to the wording of the law , “commercial use” is the relevant factor, which means that bloggers, twitterers and Facebook users, and also freelancers and companies would appear to be included as long as they are operating commercially. However, following considerable criticism of the initial draft, the new section 87g(4) German Copyright Act now restricts the scope of the term’s (“commercial use”) application. Making press publications available to the public is admissible as long as this “is not done by commercial providers of search engines or commercial providers of services who edit content accordingly”. Hence, the individuals/groups mentioned above – bloggers, twitterers, Facebook users, freelancers and companies – will cease to be targeted. As a consequence, the question as to whether social media and platform providers respectively may be held liable – vicariously or contributorily – is no longer an issue.
Although linking the new neighbouring right to collecting societies was initially discussed, the new provisions do not do so. Section 87h German Copyright Act provides, however, that copyright owners must be given a share of proceeds from the new rights.
Notwithstanding the Bundesrat’s (Upper House’s) unexpected expedition in its passing of this new law, the House simultaneously passed a resolution in which it expressed its desire to review and amend the new provisions following the parliamentary elections in September 2013. It remains to be seen whether such review or amendments will be carried out, as this depends upon the outcome of the forthcoming elections. It will also be interesting to find out how the new provisions will work in practice and how the search engines and service providers targeted by them will react or adapt.