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DEUTSCHE VERSION: Pressemitteilung
[ PDF version ], [ text-only version ] PRESS RELEASE
for immediate publication German Legislation: Is there a right to retrieve information from public sources at all? Art. 87b of German Copyright Law kills searching engines – New bill causes even more confusion Germany, 13 August 2002. The German Government has released a new draft law for regulating copyright in the information society, according to EU directive 2001/29/EG. Among other things, the government clarifies the rights of reporting daily news in online media – but unfortunately, the controversally discussed article 87b of German copyright law (Urhebergesetz, “UrhG”) has not been changed, which is the German interpretation of the EU database directive.
The news searching engine NewsClub.de has been accused of copyright
infringement by a big German news publishing company. Argumentation:
NewsClub would violate article 87b of German copyright law by setting
website links to their news articles, which they call a
“database”. NewsClub offers the web community a searching engine for news. Currently, it covers more than 100 different news sources. The user can search by news category and headline, being relegated by a web site link to the publisher's web page containing the desired article. The user receives the page directly from the publisher's server, including all contents, advertising banners, etc. There is no in-frame linking, and each news headline includes the publisher's name. In addition, the news web site gains accesses by the inflow of users that come from NewsClub. Apparently, the complaining publisher did not understand that this gives it a material benefit. It has filed a suit against NewsClub by using the exceptional rule in copyright for “databases”. Article 87a UrhG defines “databases” as follows:
In article 87b UrhG the rights of the Maker of the Database are defined:
So, the question is: Does pure linking (brokering) of internet websites violate copyright law? If that would be true, searching engines like Google, NewsClub, Altavista etc. could have to shut down their servers. The German government wants to clarify the situation with the introduction of two new articles into German copyright law - article 44a UrhG and 50 UrhG: By article 44a, “temporary copying acts” such as searching engines do are going to be allowed:
of a work or other subjects of protection, and which do not have
commercial relevance by itself, are permitted” The proposal for the revised form of article 50 UrhG also seems to be advantageous for searching engines:
(non-official translation) But it is yet unclear if legislation comes to the position that these both articles are valid for databases as well – because article 87b has not been modified! If you follow the reasoning of Munich Upper Court (OLG München), which currently deals with the NewsClub case, that article 87b would regulate searching engine activity regarding databases in a terminatory way, one could assume that the legislator used different terms for just one kind of redistribution, namely “copying”. Then, you have a forked term of copying, as searching engines, that quote and link information from databases, already perform “copying” when the quoted text is stored in memory. According to article 44a, such a temporary, technically needed storage should not be illegal. Obviously, it deserved serious quirks to criminalize searching engines and to kick them out of business. The main subject-matter in the lawsuit against NewsClub is primarily one thing: Is there a right to retrieve information from public sources? May a searching engine enable the Internet user to find the location of desired information? It is a matter of fact that the complainer's website is publicly accessible. They have not taken any precautions - neither legally nor technically – to limit access by the public and searching engines. Whoever posts a document on the Internet, without undertaking provisions such as password-secured access, or a clear “don't link me” statement (robots.txt, Meta-Tags etc.), declares that he wants to be found by searching engines. Any other construction seems to be controversial and inconsistent. Not only the consitutionally but also the logically conformable interpretation leads us to the conclusion that article 87b is not really meant as a general linking ban. It is reasonable for the creator to clarify by himself that he does not wish any linking to his documents. It is inappropriate to expect that searching engine maintainers have to ask all publishers if there is a linking permission. You would just bankrupt the searching engines if the burden of proof was on their side. It is even more astonishing that the news publisher is complaining, because NewsClub removed the company's web site from its crawler already in 2000, right after NewsClub received notice to cease and desist. The damage is incalculable for all Internet users, because the Internet is not operable without searching engines. The publisher's actual intention is clear: It wants to herd its readers like cattle along all the advertising banners, from the starting page down to the page containing the news article, hoping that the user clicks on one of them. That way, the publishing company wants to refinance its website. Metaphorically spoken, they want to forbid users to read their newspaper starting at the last page! He is also interdicted to skip pages – the newspaper should not be read too conveniently. Searching engines as NewsClub.de simply the access to information and increase the newspapers' attractiveness. In any case, NewsClub helps increasing the page access rates – advertisers benefit from that, as they can reach a bigger audience. In other words, if newspapers exclude searching engines, they lose readers and advertising income – and the advertisers are fleeced of potential customers.
You can find more detailed information about the subject at http://www.newsclub.de/prozess, including documents, sentences, pleadings and links for further information. There is also a discussion forum, in English and German.
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