170 Years Of German Publishers Demanding Special Copyrights For The Press Because Of New Technology

from the crying-wolf dept

While much of the focus on the debate over the EU Copyright Directive has focused on the upload filters of Article 13, we should be equally worried about the snippet taxes of Article 11, which journalists have already made clear will be used to enrich publishers at the expense of actual journalism (that is, if it leads to any money at all -- since attempts to pass basically the same law in both Germany and Spain failed to produce the expected revenue windfall).

Former Icelandic Parliament member Asta Helgadottir recently put together quite an amazing Twitter thread detailing 170 years of German news publishers demanding special extra copyrights just for their industry -- each time insisting that without it, new technologies would kill journalism. You can also read the whole thing on a single page at Threader, but here's a (lightly edited) snippet:

1850: German Press publishers want #copyright of news because the newly arrived technology of the telegram is ruining their business model. It is rejected.

1886: German Press Publishers want news to be covered by copyright in the Berne convention. It is rejected, and copyright exception for news is established.

1908: German Press Publishers want to limit the possibility of reproduction of news by #copyright in the Berlin meeting for the Berne convention. It is rejected, as copyright is intended for inherently creative production.

1908: The Berlin conference thus reiterates their 1886 distinction of creative production and non-creative information and news with regards to #copyright protection.

1925: The conference of industrial property in the Hague rejects a proposal to make news industrial property, citing the decision of the Berne convention.

Seventy-five years of trying to make some intellectual property protection of news had failed. Trying to cover news by #copyright seemed to be hopeless.

1920s: The wireless technology threatens the established German Press Publishers. The fact that any owner of a wireless could listen to the news! Blasphemy.

1920s: "News Theft" explodes in Germany. The big press publishers are astonished by the fact that people are not willing to pay a hefty fee to buy their printed material.

1927: The Germans lobby for a resolution within League of Nations giving unpublished news #copyright protection, governmental news in the public domain, but published news were up to each national authority.

1928: The German ministry propose a law to protect news of the day and miscellaneous information with intellectual property at home. "vermischte Nachrichten tatsächlichen Inhalts und Tagesneuigkeiten"

1928: The emergence of the radio was one of the biggest reasons in the German's new News law as it undermined the news industry.

1928-1933: The debate of the new German press law continues but is never realized because the ascension of the Nazi government and new press control laws made it redundant.

It goes on from there into modern times, and the story is always the same. German publishers demanding special extra copyrights on factual reporting, and whining over and over again about new technology upsetting its business model and threatening the "future of journalism" or whatever. And every single time they were wrong. They didn't get the special copyrights and journalism survived (and in some cases thrived).

Given this background, why is it that EU bureaucrats are now suddenly taking those very same German publishers at their word when they insist that the internet is destroying their business, and they need these special copyrights (with the friendly name of "neighboring rights") that serve no purpose other than as a wealth transfer from internet companies to legacy publishers who have failed to innovate?

Filed Under: article 11, copyright, germany, journalism, neighboring rights, press


Reader Comments

The First Word

Someone gave the example of how a restaurant guide owes nothing to the restaurants it lists

That was me. The analogy to aggregators and search engines is fairly clear.

yet the restaurants could probably enforce their marks if they wanted to

No, that was probably you, and you’re wrong. The restaurants can not enforce their marks against a reviewer. The case is Playboy Enterprises v. Welles, 279 F.3d. 796 (9th Cir. 2002). Terri Welles was Playboy Playmate of the Year in 1981 and said so on her website. Playboy, perennial losers that they are, sued her to stop her using their marks without permission. The court sided with Welles saying that she was engaged in nominative use. Where one wishes to use another’s mark, and the goods or services are not readily identifiable without using the mark, where only so much of the mark is used as is reasonably needed to identify the goods or services, and where there is nothing to suggest endorsement or sponsorship by the mark holder, a mark can be used without permission by a third party. There is no requirement to use circumlocutions.

So if one compiles a book of restaurant reviews, and you provide honest reviews (whether your opinion of the restaurant is good or bad), go nuts. No one can stop you.

search engines also link to piracy which destroys their incomes

That’s a totally different thing. But the current system has been working okay. Not great, there are a lot of false takedown notices, but okay. It’s absurd to foist the burden of identifying piracy onto search engines. If authors want to protect their rights, that’s their cross to bear.

—cpt kangarooski

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  • identicon
    Anonymous Coward, 12 Mar 2019 @ 4:36am

    What else did you expect from the country that gave us GEMA?

    reply to this | link to this | view in chronology ]

  • identicon
    Daydream, 12 Mar 2019 @ 5:25am

    Given this background, why is it that EU bureaucrats are now suddenly taking those very same German publishers at their word[...]?

    Because they're being told to. Government nowadays is too complex for anyone but the most agile-minded to comprehend, to actually manage land, resources, money, and on top of that do research into the viability of potential new laws.
    So, the people 'in charge' fall back on obeying orders; they don't check paperwork for 'is this the right thing to do', they just check for errors before stamping it and moving on. If someone from a rich corporation wines and dines them before recommending a course of action, they'll take it, because that saves them time and trouble and they feel emotionally dishonest if they don't pass laws for the people who bribed them.
    Yes, these politicians are aware that they aren't doing the right thing, but they aren't innovators, or disruptors; the most they'll do is ask their staff 'are we doing the right thing?', and no matter the answer they'll rubber-stamp the paperwork anyway, because it's easier to do that and have faith that someone else will sort out the right/wrong thing instead.
    The whole thing is culturally normal now; get bribed by a rich corporation, do up paperwork on new bill, the common public boo and hiss and do nothing else. It's the routine they're used to, and very few of them have the drive to stand up and say 'this is wrong'.

    So, what can be done? Start being the boss, that's what. Stop trying to fight the sham laws with counterpoints and protests and appeals, because that makes the sham laws feel like the status quo.
    Instead, appeal to the larger public, make them aware of issues and get them talking about positive laws and the repeal of bad ones. Do research, get experts to write the text of bills, and send the completed bill to the politicians to stamp.
    No cajoling, no appeals to their better nature or for the good of the country, just 'this is your job, do it', and save the facts for if/when they ask questions.

    (This rambling demand brought to you by sleep deprivation.)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2019 @ 6:06am

    Sounds very much like the continuous whining of the movie industries when the video recorder was released and the record labels when portable players were released! Always want something extra for nothing regardless of the harm and hamstringing done to everyone else!

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 Mar 2019 @ 11:53am

      Re:

      You just watch, any day now they'll be driven into the ground by all that rampant copyright infringement that they've been saying will absolutely destroy them unless they get another law to protect them!

      Any day now...

      reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 12 Mar 2019 @ 6:11am

    It is different this time...

    In the past, they could complain - but the others really didn't have the power to replace them at that time.

    So, I would say this time may just be different. Today's (or next weeks..) technology does have the power to make them obsolete.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 12 Mar 2019 @ 6:48am

    From https://en.wikipedia.org/wiki/Copyright

    1709: Queen Anne establishes copyright to protect authors FROM a public that was stealing their work. The law has evolved to extend the original "brief" window, just as many other laws have evolved since. From Wiki:

    "Often seen as the first real copyright law, the 1709 British Statute of Anne gave the publishers rights for a fixed period, after which the copyright expired.[18] The act also alluded to individual rights of the artist. It began, "Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing ... Books, and other Writings, without the Consent of the Authors ... to their very great Detriment, and too often to the Ruin of them and their Families:".[19] A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as the work's creator appears in some countries' copyright laws."

    "The Copyright Clause of the United States, Constitution (1787) authorized copyright legislation: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." That is, by guaranteeing them a period of time in which they alone could profit from their works, they would be enabled and encouraged to invest the time required to create them, and this would be good for society as a whole. A right to profit from the work has been the philosophical underpinning for much legislation extending the duration of copyright, to the life of the creator and beyond, to their heirs."

    "The original length of copyright in the United States was 14 years, and it had to be explicitly applied for. If the author wished, they could apply for a second 14‑year monopoly grant, but after that the work entered the public domain, so it could be used and built upon by others."

    Even the American version of copyright law uses this limited window to ensure that content creators are compensated, which runs counter to those who claim that if someone can't profit from a new legal scheme for protecting copyright, they are obsolete. Instead, copyright just isn't doing the job for which it was intended, due to piracy, which is why we now have things like Article 13.

    Many of the "legal" articles on this site are written by people who are NOT lawyers.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2019 @ 7:10am

      Re:

      What you have remember about that statute is that it was written by publishers, after the failed to get copyright as a printers right. Therefore one should be careful not to be taken in by the political spin of the past, or of the present, where companies and corporations explain their interests in terms of creators interests.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 12 Mar 2019 @ 7:22am

        Re: Re:

        As long as creators can make income while their copyrights are protected, the law is serving its purpose. This is clearly not the case on the internet.

        Whether Article 13 or some other scheme can fix that is a secondary issue. The spirit of the law -- protecting the income of creators to incentivize their creativity -- is clear.

        Someone gave the example of how a restaurant guide owes nothing to the restaurants it lists, yet the restaurants could probably enforce their marks if they wanted to, though they obviously deem the benefits of being listed to be worth not doing so because they make money selling food. If creators could make money selling creations to which search engines linked they wouldn't care either, but the search engines also link to piracy which destroys their incomes, and that is what Article 13 is designed to stop.

        Masnick and the Gang of Six (three or four attorneys and the remainder hackers/"cybersecurity" experts) that posts here so rabidly choose not to see this, for whichever reason.

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 12 Mar 2019 @ 7:45am

          Re: Re: Re:

          If creators could make money selling creations to which search engines linked they wouldn't care either, but the search engines also link to piracy which destroys their incomes, and that is what Article 13 is designed to stop.

          Uhm, no. You do have trouble understanding the English language it seems or you are so disingenuous you choose not to understand it - either way you are wrong.

          Article 13 is about uploading/posting content to a site - it has nothing to do with search engines - but I'm not surprised you conflate stuff willy nilly since you are an extremely dishonest person who lack any kind of wisdom or integrity.

          reply to this | link to this | view in chronology ]

        • icon
          Jeroen Hellingman (profile), 12 Mar 2019 @ 7:50am

          Would you support Author's rights

          If I were to argue for author's rights, to replace copyright, but mostly in the same vein, only that such an author's right would be non-transferable (except by succession to heirs) and with a strict 5-year limit on exclusive licenses, all with the purpose of strengthening the position of authors against those of publishers, would you support me? If not, then please don't pretend to speak for authors.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 Mar 2019 @ 7:59am

          Re: Re: Re:

          search engines also link to piracy which destroys their incomes, and that is what Article 13 is designed to stop.

          No, it isn't. Article 13, contrary to right-wing belief, is not about piracy at all. Not even a little bit. Read it for yourself rather than following party talking points.

          reply to this | link to this | view in chronology ]

        • identicon
          cpt kangarooski, 12 Mar 2019 @ 8:17am

          Re: Re: Re:

          Someone gave the example of how a restaurant guide owes nothing to the restaurants it lists

          That was me. The analogy to aggregators and search engines is fairly clear.

          yet the restaurants could probably enforce their marks if they wanted to

          No, that was probably you, and you’re wrong. The restaurants can not enforce their marks against a reviewer. The case is Playboy Enterprises v. Welles, 279 F.3d. 796 (9th Cir. 2002). Terri Welles was Playboy Playmate of the Year in 1981 and said so on her website. Playboy, perennial losers that they are, sued her to stop her using their marks without permission. The court sided with Welles saying that she was engaged in nominative use. Where one wishes to use another’s mark, and the goods or services are not readily identifiable without using the mark, where only so much of the mark is used as is reasonably needed to identify the goods or services, and where there is nothing to suggest endorsement or sponsorship by the mark holder, a mark can be used without permission by a third party. There is no requirement to use circumlocutions.

          So if one compiles a book of restaurant reviews, and you provide honest reviews (whether your opinion of the restaurant is good or bad), go nuts. No one can stop you.

          search engines also link to piracy which destroys their incomes

          That’s a totally different thing. But the current system has been working okay. Not great, there are a lot of false takedown notices, but okay. It’s absurd to foist the burden of identifying piracy onto search engines. If authors want to protect their rights, that’s their cross to bear.

          reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 12 Mar 2019 @ 9:04am

          Re: Re: Re:

          Someone gave the example of how a restaurant guide owes nothing to the restaurants it lists, yet the restaurants could probably enforce their marks if they wanted to

          ...sorry, are you suggesting that a restaurant could use trademark law to sue people for including its name in directories or reviews?

          reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 12 Mar 2019 @ 8:04am

      Re:

      I’m a lawyer.

      I can tell you that this:

      Queen Anne establishes copyright to protect authors FROM a public that was stealing their work.

      isn’t true. Anne herself was not known to be particularly involved in the passage of the law. It’s just named that because she was Queen at the time. It was the particularly vigorous Parliament of the day that did it. And it wasn’t at all to protect authors from the public; the public didn’t own printing pressses. It was to impose order on the publishers (who had lost their monopoly in the 1690s) while not restoring their power to what it had been. This meant vesting rights in someone else, and authors were a good prospect for that. It didn’t help authors much — they still tended to get ripped off by publishers as they do to the present day. It also helped the public by establishing the public domain and limiting the scope and duration of the rights Parliament doled out.

      Even the American version of copyright law uses this limited window to ensure that content creators are compensated

      Bzzt, wrong. No one ensures compensation; most works have no economic value whatsoever, and of the remainder most have no copyright-related economic value. Authors go without compensation all the time; why do you think there’s a stereotype of starving artists? Copyright simply directs some of the revenues associated with a work to the copyright holder. How much revenue there is and who gets shares along the way is not guaranteed. Usually it’s zero or thereabouts.

      copyright just isn't doing the job for which it was intended, due to piracy, which is why we now have things like Article 13.

      Nah, that’s bullshit.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2019 @ 9:39am

      Re:

      Even the American version of copyright law uses this limited window to ensure that content creators are compensated

      Copyright law has never been about ensuring creators are "compensated." If you wanted to do that, you'd just have the state fund content creators.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2019 @ 11:06am

      Re:

      Where your law degree bro?

      reply to this | link to this | view in chronology ]

      • identicon
        cpt kangarooski, 12 Mar 2019 @ 1:08pm

        Re: Re:

        Where your law degree bro?

        The actual piece of paper? It’s hanging on the wall about five feet ahead of me and to the right, next to my Bachelor’s degree and my LL.M. in intellectual property law. My law licenses (the wall ones) are on the opposite wall. The license cards are in my wallet. They’re good for letting me skip lines and security checks at courthouses (depending on how the bailiffs feel at the time) but on the other hand are no good for even getting me a discount at Dairy Queen. But I can file papers in court and represent people without having to worry about UPL issues.

        How about you, bro?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 Mar 2019 @ 9:33pm

          Re: Sorry

          That was aimed at Jhon boy. But since he seems to think only lawyers are allowed to talk about the law perhaps it’s a a good thing you pointed it out.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2019 @ 7:52am

    "1850: German Press publishers want #copyright of news because the newly arrived technology of the telegram is ruining their business model. It is rejected. "

    Hahaha - they think copyright should protect their business model

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Cyclogenesis, 12 Mar 2019 @ 8:51am

    "And every single time they were wrong." -- Even in Nazi Era?

    1928-1933: The debate of the new German press law continues but is never realized because the ascension of the Nazi government and new press control laws made it redundant.

    "redundant" there means got. So you're flatly wrong.

    But of course you don't bother with facts when -- like the Nazi gov't -- you have a fixed agenda to push.

    And today the "technology" that will kill "journalism" is the multi-national corporations that already effectively control what's "news" and whether it gets wide availability.

    Masnick even advocates that "platforms" control news by way of prior restraint on persons whom "platforms" deem should not be heard:

    "And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

    https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content -free-speech.shtml

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2019 @ 9:10am

      Re:

      You realize Nazis are supported by the Trump presidency? Which you support? Nice going, dumbass!

      reply to this | link to this | view in chronology ]

    • icon
      Igualmente69 (profile), 12 Mar 2019 @ 9:14am

      Re: "And every single time they were wrong." -- Even in Nazi Era

      '"redundant" there means got. So you're flatly wrong.'
      It is a single mistake in word choice that means nothing in regards to the overall thesis.
      Your second claim in nonsensical in the extreme. You talk like it is a new thing for corporations to publish news for profit when that is how things have gone for, you know, centuries. It is called freedom of the press. Prior restraint is a term that applies to government censorship, not private entities, who can in fact decide who gets to use their services.
      Are you attempting to make an actual point? If so, you fail.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 Mar 2019 @ 12:09pm

    Nearly 200 years of self-entitlement...

    Well, at least they're consistent when it comes to acting as though the world revolves around them and needs to be changed to suit them, rather than them being forced to change to suit the world.

    reply to this | link to this | view in chronology ]


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