Ancillary Copyright for News Publishers: Would Google Really Have to Pay? – A Competition Law Analysis

Posted by Social Science Research Network

Ancillary Copyright for News Publishers: Would Google Really Have to Pay? – A Competition Law Analysis – Christian Kersting and Sebastian Dworschak (Heinrich-Heine University Düsseldorf – Faculty of Law)

ABSTRACT: At the time the first paper was published, the ancillary copyright for news publishers had not yet been adopted by the German legislator. However, the conclusions drawn in both papers are still valid.

The introduction of an ancillary copyright for news publishers was intended to allow news publishers to prohibit search engines to display snippets of their content, which until then did not enjoy copyright protection. Even though the ancillary copyright for news publishers was adopted in 2013, it is uncertain whether the snippets displayed by search engines enjoy copyright protection. A well-founded opinion argues that snippets still do not enjoy copyright protection. If, however, snippets enjoyed copyright protection, search engines would need to either stop displaying such snippets or license them from the publishers. Using Google as an example, this article discusses the plausibility of a potential competition law obligation to index publishers’ content and pay publishers if snippets appear on a search results page. We conclude this is not the case: Google can avoid paying for snippets by refraining from indexing and displaying this content.