Ancillary copyright (Leistungsschutzrecht) for press publishers You do not talk to thieves

(Hopefully) Closed Session for Reading?

On Friday, the time has come: The first reading of the ancillary copyright law in the Bundestag. And that at 1:50 (update: pushed forward a little). At night.

In the digital public, the draft law is, of course, noticed. There is a fair amount of headwind in a statement from the Max Planck Institute for Intellectual Property Law. Google is launching a major campaign “Defend your net”. The campaign video is a good wake-up call, and the background information is well presented at IGEL – which, by the way, is also a good starting point for supporters and undecided people.

When Google says “Defend your net”, it also means, of course, “Defend us”. That is also the main point of criticism of the campaign. Christoph Keese has put together two noteworthy comments from the SZ and the FAZ on Twitter that do not go along with the Google campaign – admittedly, they should be read with caution in this context, as he is a direct lobbyist for the project. A good starting point for a neutral summary of the topic: the summary of the Tagesschau.

A small disclaimer in between: I am currently not setting links to the articles mentioned if they come from publishers. I do not have a license to link and all the reassurances that bloggers are not affected do not convince me without legal confirmation – legal uncertainty sends its regards.

Everyone always wants our best

However, presenting one’s own interests as the common good is neither reprehensible nor unusual – Christoph Keese himself does it in a tweet when he presents Google’s campaign in an ominous light and links it to the death of newspapers. Newspapers appear here as a bastion against the opinion dominance of a company, although they are just as much commercial enterprises as that company; and to speak of tendencies towards the formation of monopolies among media houses is, well, not exactly far-fetched. Stefan Niggemeier analyzes the inconsistencies in the discussion further.

So objectivity is called for, as the Federal Association of German Newspaper Publishers demands in a tweet. It is just a shame that one tweet is often followed by another.

A metaphor: Google as a shoplifter?

That is, the Federal Association of German Newspaper Publishers has publicly stated that anyone who is against the ancillary copyright would advocate shoplifting. This is not only not very conducive to a culture of discussion, but also contradicts their own statement from the previous tweet emphasizing to stick to the facts. I would, therefore, like to stick to the facts for a moment and do nothing more than analyze this little shoplifting metaphor for possible interpretations.

Let us accept the analogy for a moment. Who would be Google in this equation? The shoplifter? In this case, Google would have to take content away from other readers – a stolen edition is just one edition less for paying customers. Okay, that is not possible on the internet, as we all know. But at the very least, Google would have to make it more difficult for other users to access the content. The opposite is the case: Google’s business model and its importance to users is based precisely on making content easily available.

Okay, so let us look at it the other way around: Google is a shoplifter because the company takes the content of newspapers, cuts out snippets, reassembles them for its customers and then markets this product without the authors or publishers getting anything out of it. If that were the case – excuse me, but then “shoplifter” is simply the wrong term. Industrial espionage would be more accurate, or fraud, or immoral behavior. Again, the shoplifting analogy misses the point. But if Google is a freeloader, why stop at only half of it? Why not just leave out the link to the publisher and pretend that all the content was created by its own editors?

In this case, could Google’s role be more like that of a kiosk owner? A kiosk owner offers his customers newspapers and magazines in order to receive a share of the revenue. So how logical is it that this kiosk owner should now have to pay for this activity on the internet?

So who is the shoplifter?

But if Google is not the shoplifter, then who is it? Is it the reader who quickly glances at the headlines but does not buy the newspaper? Again, the metaphor is flawed – if I as a reader glance at snippets but do not click on them or even take out a subscription, I am not taking anything from other readers, as I would be if I shoplifted.

But let us leave this real-world analogy – it does not work well on the web because digital goods are subject to different conditions than material ones. So let us put it another way: the readers are shoplifters because they read content without paying for it. Do readers flick through the magazine, read everything and then put it back on the counter? Hardly – because in Google, we can only read snippets, not articles. If we were to click on the link and read the article, we would be accessing a publisher’s offering – and thus the publisher would be free to charge us a fee or otherwise market the content.

So, just by reading a few headlines and teasers, the reader is a thief. But wait a minute: can I seriously call a reader who reads the headlines and teasers but then does not buy the issue a shoplifter? Or is it more the case that this reader is simply a potential buyer who has decided against a purchase because the content is not compelling enough? What kind of reader image is conveyed by such a statement, when a prospective customer appears as a thief? In any case, not one that could promote mutual understanding. Do the inconsistencies in the metaphor reveal deep problems in the relationship between the parties involved? Or is it simply “just” an inappropriate analogy?

Discussions not wanted?

The shoplifter analogy is just one of many examples of how little substance there is to the debate on the ancillary copyright law – analogies and metaphors go haywire without being fully formulated or even questioned. And when you encounter someone who thinks differently, you just quickly impute something to them, e.g. that they support shoplifting or have not understood the internet or do not appreciate the value of journalistic work or are doomed anyway. Or is there no discussion to be had here?