Ancillary copyright/Leistungsschutzrecht

Urheberrecht (the right of an author, which under German law cannot be assigned): copyright
Leistungsschutzrecht (the right protecting commercial activity in connection with copyright, for example publishing): ancillary copyright

Leistungsschutzrecht, literally ‘right protecting performance’, is not easy to translate into English. It’s sometimes called a neighbouring right, which is OK if you realize it’s neighbouring copyright. Ancillary copyright is commonly used, but perhaps misleading, in that the right is not actually copyright. Uexküll’s dictionary has wettbewerbsrechtlicher Leistungsschutz: accomplishment-related protection under German law. It’s a form of industrial property right, not really a form of intellectual property right.

The term has been in the news recently because a draft bill has been presented to the Bundestag for an amendment of the German Copyright Act (Urheberrechtsgesetz) giving (mainly newspaper) publishers a year-long right protecting their publications from commercial online use, and it obviously affects bloggers. This was part of the coalition agreement of the present German government.

‘Hobby bloggers’ are OK. However, I am not a hobby blogger under this bill, because I blog on translation, which is what I earn my living from. Even though I no longer display Google ads, nor even links to amazon, I am therefore a commercial blogger. If this bill becomes law, I will be allowed to link at will, but if I copy even the smallest part of a newspaper article, I will have to get a licence to do so, or presumably action may be taken against me. And there have been lawyers in Germany in the past who earned part of their living from sending warning letters to webmasters, for instance for not having an Impressum.

It’s true that section 51 of the Copyright Act allows quotation to some extent, but it’s probably safer simply not to quote newspapers at all if the bill becomes law.

What isn’t clear to me is whether as a commercial blogger I actually become a publisher so that I could sell licences myself. I don’t regard this as likely to interest anyone, I am just not clear on the point. What about a service like jurablogs? I find it useful because it shows me the topics of a huge number of German law blogs which I might not otherwise see. Presumably it would be threatened by this law. And what about Perlentaucher?

Fortunately it’s rather late in the parliamentary session, so maybe this won’t come to anything.

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