International Law

Germany Violating Berne Convention

By Karl-Friedrich Lenz

Germany joins Japan in violating the prohibition of formality requirements in Article 5 of the Berne Convention.

In contrast to Japan the German treaty violation is done by case law, by a decision of the Federal Court of Justice from April 29. The decision as such is not yet online, only a press release (in German).

That particular case was about an artist objecting to Google displaying thumbnails of her works published on her website. The lower court ruled that this is in violation of copyright, but had Google win anyway on a theory of abuse of legal rights. Since the plaintiff had done some search engine optimization her lawsuit was found to be contradicting her own prior behavior.

In contrast, the Federal Court of Justice relies on the theory developed earlier by former judge at the Court v. Ungern-Sternberg that makes up implied permissions out of thin air where there are none, or as in my case as a web author, fierce and clearly expressed opposition to spam empires getting a free ride on other peoples’ creative efforts.

As far as the press release goes, it is just the same old story that web authors can opt out easily and therefore are presumed to opt in.

I will have to wait for the full decision to be published. But actually I would be surprised if the Court discusses the clear violation of the Berne Convention that follows from his theory. The earlier article by v. Ungern-Sternberg overlooked that aspect.

So, for the moment, I will just take the occasion to once again object to the opt-out model.

While it is correct that people can easily opt out, the same is true for opting in. Anyone who actually wants search engines can declare so in their robots.txt file. So that whole argument can easily be turned around completely. Since it is so easy to opt in, anyone who does not take the trouble to do so must clearly be assumed to opt out. There is no logical reason for one of those views to prevail.

And this case makes clear that the assumption of permission is completely fictitious.

Here we have a creator of works that takes the trouble to sue the largest media company in the world, with their high-priced lawyers and endless resources. She pays large lawyers fees and spends years fighting against Google. And at the end of all that, the Federal Court of Justice assumes that she wants to permit Google’s use of her works. Or that at least Google can reasonably assume that.

Of course she does not want to permit any such thing. If she did, she wouldn’t be suing in the first place. So this decision just claims the right to decide in place of the copyright holder what is best for her and what she should be permitting, where it is quite clear that her actual will is on the opposite side.

Neither German copyright law nor the European Directive have an exception for search engines. This decision of the Federal Court of Justice attempts to create one anyway. That is not in the power of the Court, who is overstepping his competences, while violating international Treaties in the process. If the friends of the evil spam empire want to slap the copyright holders in the face with this new exception, they need a majority for legislation.

Such legislation would need to address why Google gets away with using other peoples’ works without compensation, while use for personal purposes or for inclusion in a school text book triggers compensation. In the latter case the German Federal Constitutional Court actually insisted as a matter of human rights on that compensation. Why a small publisher of school textbooks needs to pay while Google with its billions of profit gets all content for free is not easy to explain.

Such legislation would need to address why it is incompatible with European principles of copyright and the Berne Convention when Google digitizes books and makes them searchable without prior consent, but why those principles suddenly cease to apply once the copyright holder chooses to place his content on the Internet. Where is the difference?

And such legislation would need to address the scope of the search engine exception. Exactly what is necessary to qualify as a “search engine” use? Can search engines also mirror whole sites in their cache, taking reader numbers from the original site? Can they offer machine translations?

I doubt that this single decision by the Federal Court of Justice will be able to answer all these questions. It will be interesting to come back to the question once the decision itself is online.

See also this short comment on the Google European Public Policy Blog.

Full post as published by Lenz Blog on April 29, 2010 (boomark / email).