USTR Special 301 Report Doesn't Even Mention Germany Trampling Fair Use

from the did-they-even-look? dept

Last week, when the USTR’s infamous Special 301 Report (pdf) came out, one of the things that I was most interested in was how the USTR would treat Germany. After all, back at the beginning of March, Germany’s lower house, the Bundestag, passed a somewhat watered-down, but still troubling, bill concerning the quoting of “snippets,” saying they would need to be licensed. The watered down part noted that “single words or the smallest excerpts” would not require a license, but no one has defined what “smallest excerpts” means. At the beginning of April, the upper house, the Bundesrat, declined to challenge the bill, effectively making it law in Germany. The text of the bill notes, in part, that:

The producer of press materials (press publisher) shall have the exclusive right to make these press materials publicly available, in whole or in part, for commercial purposes, unless it is a matter of single words or smallest text excerpts.

While there’s still uncertainty over what it means, CCIA alerted the USTR that this almost certainly represented a violation of the Berne Convention’s Article 10(1), which states:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

It is difficult to see how the German law does not violate that, and thus, it would appear that the new law is a form of a trade barrier on US companies due to improper use of intellectual property laws — which is exactly what the Special 301 report is supposed to call attention to. Of course, historically, the USTR has only used the Special 301 report to call out countries who aren’t creating strict enough copyright, patent and trademark laws — not those which have made them too strict.

So here we had a clear example where Germany had created a form of an “IP” law that went too far, beyond our trade agreements, in a clear attempt to try to create a form of a trade barrier against US companies, to block them from doing things like creating a new search engine. So how would the USTR react?

Well, apparently by ignoring the issue entirely.

The only mention of Germany in the entire report is the following:

U.S. industry has expressed concerns regarding the policies of several developed trading partners, including Finland, Germany, Greece, Hungary, Italy, Korea, New Zealand, Poland, Portugal, Romania, Spain, Turkey, and Taiwan, on issues related to innovation in the pharmaceutical sector and other aspects of health care goods and services.

No further explanation or discussion is given. Basically, it looks like the USTR really just doesn’t much care when other countries create even stricter IP laws — or when those IP laws might impact the internet industry.

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Comments on “USTR Special 301 Report Doesn't Even Mention Germany Trampling Fair Use”

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Anonymous Coward says:

that’s because those compiling the list (the USA entertainment industries) dont give a flyin’ fuck who loses what as long as they dont lose anything and that’s from control to money and everything else in between! i seriously cant wait for the day all this shit comes back and bites them so hard right on the arse! and that goes for all those that are helping as well!!

That One Guy (profile) says:

Re: "While there's still uncertainty over what it means"

Indeed, why it’s not like being put on the list they put out has caused governments to frantically new pass laws, despite pretty much the entire population of that country being against those laws…

Oh, right… you were saying?

Thorsten Roggendorf (user link) says:

Trade war

The article hints at it but the comments indicate that this has not become quite clear:

in a clear attempt to try to create a form of a trade barrier against US companies

The respective law was successfully pushed by the news paper lobby (against which no politician stands the slightest chance, BTW this year is election year) explicitly in order to hurt Google News. Nobody ever left a doubt about this. This is Lex Google News. Other innovations in the news sector start gaining significance lately, but you cannot expect wood-media execs to keep up with e-media innovation even as spectators.
So regardless of whether the paper-papers end up hurting themselves this is a law to explicitly designed to hurt Google. I’d love if that got my US-brown-nosing representatives on that despicable list.

Chromanoid (profile) says:

Re: German "Act of Copyright and Related Rights"

For the curious ones (regarding quotes):

It shall be permissible to reproduce, distribute and communicate to the public a published work for the purpose of quotation so far as such exploitation is justified to that extent by the particular purpose. This shall be permissible in particular where

1. subsequent to publication individual works are included in an independent scientific work for the purpose of explaining the contents,

2. subsequent to publication passages from a work are quoted in an independent work of language,

3. individual passages from a released musical work are quoted in an independent musical work.

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