CCIA Argues Germany Should Be On The 'Naughty' Special 301 List For Attacking Fair Use

For years we've talked about the infamous Special 301 Report, in which copyright maximalists complain to the USTR about countries they feel aren't cracking down enough on "infringement." The USTR then comes out with an official report that lists what countries have been "naughty" (with two levels of naughtiness). There is no objective measure -- basically the USTR just lists out the countries that the biggest maximalists dislike the most. And then the State Department uses that bogus list to apply pressure to foreign governments to get them to ratchet up their draconian copyright laws. While the "comment" period is open to anyone, it tends to be dominated by maximalists. We tried filing our own comment a few years back, but have since realized that the deck is completely stacked. In fact, even the official questions they ask you to answer are heavily biased so that you can only complain about other countries that are "denying adequate and effective protection for intellectual property rights." So while we figured it wasn't worth filing anything, our friends over at CCIA, who have backed some of the research that we've done, put in their own comment, which called out Germany for its attack on fair use. As you may recall, Germany has been pushing forward with this plan to force search engines to pay up for posting snippets and links to news sites. This is a pretty clear attack on basic fair use concepts that allow the internet to function. If you believe, as we do, that fair use is a right, then Germany's actions are, technically, a "denial of adequate and effective protection for intellectual property rights," and thus the country belongs on the Special 301 list. As CCIA writes:

These comments address a troubling new legislative proposal in Germany that would violate long-established rights of Internet services to make use of information online. The legislation would create a new Leistungsschutzrecht for press publishers, such as newspapers and magazines. Contrary to Article 10(1) of the Berne Convention, this proposed legislation would prohibit Internet platforms from displaying snippets of news stories without obtaining the publisher’s permission and paying a license fee for these quotations. While it is as of yet unclear, we expect that the new right will be administered by a collecting society, with newspapers that wish to exercise the new right being required to join. If this comes to pass, no search engine or affected social media platform will be able to directly negotiate with any publisher; they would instead be forced to enter into a blanket, compulsory license, or be penalized as an infringer of IP rights. Thus, the proposed legislation is simply a government mandated compulsory license, transferring money from one industry to another. As such, it would constitute a costly new market access barrier. Some commentators have even speculated that the legislation might force news search services and affected social media out of the German market, by not returning results for German IP addresses. At the same time, this proposal would have obvious debilitating effects on German-based Internet platforms.

There's a lot to be said for this argument, and for recognizing that user rights are an important part of copyright, not just the rights of the copyright holders. In fact, it's quite reasonable to argue that the public's rights should greatly outweigh the privileges granted under copyright. And, now, we will see if the USTR actually pays attention to such things, or if they will ignore it and only focus on maximalist privileges, rather than the public's rights. At the very least, this provides an excellent suggestion for filings in the future: there are lots of countries that don't have nearly enough respect for fair use or for other rights of the public when it comes to copyright. Permalink | Comments | Email This Story