 Good morning. Thank you for coming back from Coffee Break or Tea Break. It's always difficult to do that. But we have a very, very full program, as you have already surely seen. And the next panel for you is already waiting, and it's in front of you. As already mentioned earlier, and as you surely know, several member states in the EU and also countries outside of Europe have, in recent years, experimented with various possible legal solutions to the core problem that we are addressing today, the news aggregation issue. And before considering a possible harmonized European approach, which apparently the European Commission wants us to consider, it is important to look at these national experiments and to see what they have brought us, what they have taught us, what we can learn from them, what we cannot learn from them. And that's why we have this panel here for you this morning. We have experts from various countries where such experimentation has taken place. We have a great panel for you from left to right, from Germany, the country of the Leistung Schutzrecht. That was already mentioned in the first panel. Professor Michael Grünberger of Bayreuth University, Chair of Civil Commercial and Technology Law at Bayreuth. Next to him, Professor Raquel Salabarder from the Open University of Catalonia, Universitat Roberta de Catalunya, where she also has the Chair of Intellectual Property. And she'll, of course, talk about the Spanish Google remuneration right. To her left, to your right, is Ceren Christian Söeberg Andersen, who is an attorney at the Danish law firm of Horton, who will tell us about Danish experiences with copyright-related cases on news aggregation. And then from the United States, we have, to the far right of you, Chris Beal, who is a trial attorney at the U.S. law firm, LSKS. And he will talk about American experiences with news protection. And all our speakers are duly instructed not to exceed 10 minutes, and I will be a fair but strict enforcer of that. I guess, according to the program, our first panelist will be Michael, so I will find you to come. You have a few slides, then it's better you come up here. The slides are already up. Thank you very much. I only have a very limited amount of time, so I'd like to get through a few slides. I hope they will be helpful for you to understand. We're discussing the German Copyright Amendment from 2013 that introduced the Related Right for Press Publishers. He has an extra from the Federal Gazette. I want to focus on three issues. First, what's protected? That's the object of protection. Second, what's the scope of protection? And third, what are the law's consequences? Let's go to issue number one, the object of protection. We've had a handout, and you can read the materials there both in German and in English translation, and if you look at the handout you see in section 87f, paragraph two, you have the description of the press product. That's the object of protection. There are five elements that are of relevance here. The first and the second one I'll discuss in a little bit of detail in a second. The number three is pretty self-explanatory. We need a collection published periodically, so a single book will not suffice, but newspaper, weekly magazines, even regular publications on the internet such as blogs will meet that prerequisite. Number five is a little bit tricky, if you can see, because it's a little vagueness there. The collection has to be predominantly typical for the publishing business. The translation you have in your material is not actually correct in my opinion, because the law really tries to describe what's going on in the traditional publishing business, but also on a dynamic side, what are new ways of publishing materials. Let's look at the journalistic contributions. A few remarks on order here, I think. The journalistic contributions may be protected by copyright or related right, so the press publishes right is completely independent from any IP rights in the journalistic contributions. However, the law has to save gods. First one you might already know from the Rome treaty and from the WPPT treaty that related rights should not in any way impede copyright. Nobody knows exactly what the system boasts to mean in the context with authors and press publishes right. Interestingly is the provision in section 87H. The author is entitled into revenue sharing and this is problematic from the European Union law point of view. If you think about the Srensen decision and the clear statement that the author's right of communication to the public has been fully harmonized, this Germany is granting authors an additional right, not granted in the European directive, so this is quite problematic. What is a journalistic contribution? We have a legal definition and I put it into marks because it's not really a very helpful definition at all. Important is that we have any media type and any kind of information. There's some debate about it, but the majority of commentators say any media type, any kind of information, so the subject is quite broad. What's interesting here is the contribution has to be fixed. It has to be technically fixed and we have an analogy here to the right of phonogram producers. It is important that there is a fixation. No one exactly know what kind of fixation is it. A printed fixation is it the HTML code. It needs to be just the first fixation and it also must be, there must be an editorial fixation. That means there must be a minimum requirement with regard to content selection and or arrangement, so there has to be some mere technical fixations will not do enough. The core object of protection as you can see it in the preparatory materials is the press publishes commercial, organizational and technical activity and that's the same way we explain Germany the right of phonogram producers. What's the scope? This is the provision 87F, an exclusive right to make the press product publicly available. So please note we only have the making available right. Jan Hegemann earlier said that if publishers had the press publisher right they would be entitled to share into the copyright level. That's actually not correct because the press publishers don't have to reproduction right and that's important right to have in order to share into the copyright level. So no reproduction right, no distribution right, no communication to the public right in the broad sense and no equitable remuneration as we know it from the rental and lending rights directive. Only limited to making available right as we know it from article three, section two from the infosec directive. And this right is even fertile limited because you have to read section 87F together with section 87G and only then you get the proper scope. It's not done in a very, very well manner. And here you see only those acts are protected that are done by commercial providers of search engines, we know all what that is, Google Bing etc. And then comes an interesting point, commercial providers of services which process the content accordingly. And if you remember the Jan Hegemann's presentation earlier, an obvious candidate might be Google News, well it's not that obvious. Another obvious candidate might be services like Flipboard, you might know it, it has a pretty nice app on both iOS and Android. And maybe even Facebook isn't there, but why did I put question marks in here? Because we have a problem. And the problem is, if you look at the preparatory materials and I have to say sorry they're in German but I will translate it immediately. What is covered in the preparatory materials? What is covered are all kind of services that work like search engines. What is the proper thing of a surgeon? You put in a search query and then comes a sentence, those services who do not work like surgeons, those services who present the content based on their own selection are not covered by the press publishers, right? So there's pretty substantial argument can be made, say that Google News does not work like a search engine because it's no search query. Flipboard does not work because Flipboard makes its own selections. I'm not sure if this will carry the day at the end, but what we thought might be covered by the press publishers, right? Not so clear after all. What about hyperlinking? We've discussed it before. There's case law in Germany that surfers and deep links are with beyond the scope of the making available right. We've had some recent discussion lately about framing and embedding. You might be aware of the discussions of the Federal Court of Justice in the reality cases that came up to the Supreme Court of Justice as the best water cases. And here again, the Federal Court of Justice made it very clear that there is no hyperlinking. What about snippets? Are snippets individual words or the smallest of text excerpts? The demarcation is highly contested. You see a number of possible solutions there. The application board at the Deutsches Patentmarken, the German patent trademark office, suggested that seven words might be okay, eight words might be too much. So we see a lot of legal uncertainty here. And what about thumbnails? Thumbnails are not included in the wording. We have case law in Germany that basically has a fair use implementation through contract law to the legal doctrine of implied consent. Does this doctrine apply? Has it been narrowed to texts only? Or has it been completely overruled by the press publishers, right? Also, the questions that have not been answered yet. And what about interpreting the making of Edelweid after Swenson? There will be a discussion next month in Munich about that topic. What are the consequences? This was the aim, getting revenue sharing for Google. This was the explicit aim. It's what happened. Well, I've tried to put all the steps on here that happened. Google first started with requiring opt-in for listing content on Google News. That was the first thing. Publishers then took over Faugue Media, the Collecting Society, and transferred their exclusive rights to the Collecting Society. The Faugue Media submitted royalty rates, 6% of total revenue before taxes, and applied for a settlement proposal by the German Patent and Trademark Office. Then Google went a step ahead and required a second opt-in in writing for all these publishers who have transferred their rights to Faugue Media. And it required the written consent in order to continue presenting snippets and templates on any Google service. The publishers instructed the Faugue Media to give that consent. Then they filed a complaint with the Bundeskatella and then they filed a lawsuit against Google's presumed debuts. Let's focus on the two second things. The Federal Competition Authority issued its decision last September, and it said very clearly, an exclusive right is but an instrument to monetize content on a marketplace. The right does not guarantee the success of this instrument. Competition law does not compel a service platform to change its otherwise legal business model, and Google's opt-in requests are justified. They are necessary means to avoid liability caused by the considerable uncertainty of the press publishers' right. What did the Regional Court in Berlin say? We don't have the verdict yet. We only have the press release from February. Basically, the same point of view. The equilibrium would be harmed if Google were forced to pay. Final remarks. The Insular Right in Germany has been a complete regulatory failure. It promised we're more that it could ever deliver. Eventually, it recreated with regard to Google the exact same situation we had before, however, with substantially higher transaction costs. The Insular Right, and this is a point regulators really should look into, particularly with regard to Google, the Insular Right is responsible for possible competitive disadvantage with regard to other search engines outside of Google. Final remark. Copyright law needs technology and media-sensitive access rules. The press publishers' right as an exclusive right, as it has been introduced in Germany, does not meet that standard. Thank you very much. Thank you very much. Thanks, the organizer, for inviting me. It's always nice to be announced to them, despite the weather. I've been told to do the chronicle from Spain. If you allow me today, back in Barcelona, back home in Barcelona, it's a beautiful sunny day, we hope, and we have a festivity where we celebrate books and literature, and we give each other roses. So if you allow me, I'm going to call it, what I'm going to tell you, the chronicle of a death foretold. It's not going to be as magic as Gabriel Garcia Marquez's work, but it's still a death that I'm going to tell you about. So the Spanish amendment of the quotation exception came up as a surprise at the time where the Spanish government had been dealing with a bill, working on a bill to amend the copyright act, which at that time was meant to amend the specific topics that needed urgent action. During over a year and several drafts, none of these drafts that had been sent to the bodies that must report and advise on a bill before the bill is introduced in parliament, none of these drafts had this provision. There was no amendment, there was nothing like Google tax or Google anything. That thing came up, that provision came up at the very last moment when the government approved the bill to be introduced in the parliament. Maybe because it was so fast and unexpected, it's poorly drafted. That's the very first problem. We know what it wants to say, the minister said it the next day, said we want aggregators, are the ones making the money, news publishers are losing money, we want them to pay the others, want to pay the others. But that's not what it says and you'll see why. There was also another problem, which is a problem of timing. The day before the government was passing this bill with this surprise provision, the European Court of Justice had ruled on Svensson. So if linking is not an act of making available, to freely available contents is not an act of communication to the public, then there's no reason to introduce a limitation that allows communication to the public through linking. And then the last thing, which also claims to this, well it's poorly says, doesn't say too much about the Spanish parliament, is that all over the year that the bill was being in the parliament under parliamentary proceeding, there were several amendments to delete this provision, there were several amendments to amend it, nothing happened. The provision entered the parliament and left. We all saw it was going to crash, nothing happened. Maybe none of the political parties wanted to pick up a fight with the press after all, right? So what is it? What do we have? It's a limitation disguised under the quotation limitation, which authorizes the making available to the public by providers of aggregation services, of contents available online, and I'm putting news in brackets because you'll see it covers far beyond news, subject to an equitable compensation which is unwaivable and is mandatory managed by collecting societies. There's also another limitation for search engines, but I think we're not so interested about that. That's what I wanted to show you and forgive me for the colors, but that's the way I thought we could make it easier for you to understand. So what we are saying, it's a provision, it's a limitation that allows the providers of digital service of content aggregation, aggregators of what contents the blue part, the blue part, take a look at the blue part. Contents available in periodical publications, news, or that's an addition, periodically updated websites which have an informative purpose creation of public opinion or entertainment. This goes beyond news. This means any Twitter, any Fiddly, RSS, any blog who's doing links to contents available online. Which rights are authorized by the provision, by the limitation? The making available to the public, not the reproduction. Of non-significant fragments, excuse me. I mean, if any act of exploitation is being involved in an act of linking or aggregating, it's precisely not of non-significant parts, right? It's either the whole work and Svensson said no. Or the parts, the snippets and the title that Svensson didn't address and that at any case we could be discussing whether that's a reproduction or a quotation, or it's making available to the public beyond the linking to the original contents, right? So in any case, and if we say that this provision is only authorizing the linking or the making available to the public of non-significant fragments, then maybe we don't need a compensation if it's non-significant. The press publishers are saying in the previous panel they were saying the title and the beginning is where the information is. That's a significant part of the news, right? Anyway, let's go to the red part now. This is subject to compulsory equitable compensation. Compensation, not remuneration. Compensation for the damage cost, right? And waivable, not inalienable, which makes a very, you know, good question as to does this mean that the authors could be transferring this compensation? Maybe not after reproval, but look, we're not talking about authors here. We're only talking about publisher or as applicable other rights owners. The author is out of the loop. This is not despite being a limitation to author's rights. This is a limitation to benefit publishers, not authors. And then it's going to be only effective through collective management, which makes sense if it's unwaivable that it's only the collecting societies who can do it. But still, was it necessary? Usually we make collective management unwaivable remunerations or compensations when the market doesn't allow for this kind of licensing. But here, you know, there was no market failure. And the commission, the Spanish authority on competition and markets, was the one who, after the bill was introduced in the parliament, issued a second report saying, you didn't send me this provision to evaluate, but now you're going to hear me. There's no market failure that has been proved to introduce this limitation, and it will have anti-competitive effects. And on top of all these graces, look what's the green part. Contents, applies, includes all works, not only news, not only printed news, all works, right? Music, documentaries, or the visual recordings. Photographs are excluded. Don't ask me why. We don't know. Which also means, does it mean that then the photographs, and notice when you look at the green part, you also say you don't know whether it's saying that the making available to the public of photographs as in posting photographs needs an authorization, yeah, or making available to the public as in linking to photographs, which makes more sure. But that's, look at the clumsy language, you know, that's what happens when you do things fast, and the night before, and then no one over a year tries to make it better. That's the search engine, I'm not going to stop here, that's the second limitation for search engines, but also look, it refers to the same contents as above, it introduces the specific terms of, and I think we copy it, I'm sure we copy it from the Germans. Isolated words included, isolated words. There's no compensation for this one, but it's subject to three conditions. One of them, the green ones, the conditions, one of them without its own commercial purpose. Nobody knows what that means also. So what's the problem, or what's the dangers here? What it says, clumsy language, we don't know whether it's going to be applied all over, whether it's going to be basically a system of crust subsidized agents on the internet, because every blogger is going to be paying and receiving if the authors can receive anything, or any website is going to be paying and receiving this compensation. Very broad, beyond news, but also beyond Spain, because we cannot discriminate in terms of nationality right within the European Union. This means that not only Spanish newspapers could be benefiting for it, but also any EU, as long as the aggregation is done in Spain. How are we going to assess it? The ES aggregators, users accessing it, Spanish language, all these problems that they're seeing. It doesn't say either who's going to pay for it, and that's important. If you let me go back very fast, that says the right of remuneration, but not who's going to pay. So it could be the newspapers, it could be the intermediaries, it could be. It doesn't say either, well, yeah, let me skip, because I only have one minute. What it doesn't say, and it implies basically what happens with all the other licensing, or all the other aggregation, and all the other search engines that are not covered by the limitation, does it means, a contrario, that they need a license, which is completely opposing Svensson and the Court of Justice ruling on interpretation of EU law. And then another danger is what it doesn't say and doesn't even imply, because no one thought of it, what about linking to unlawful contents? Is it still going to be authorized by this limitation? Because the language doesn't say anything, doesn't say too lawfully posted contents. It's going to be compensated, and compensated according to the damage, it's going to be at the end a bit of a, you know, a laundering machine for linking to unlawful contents. Well, there's nothing like this. Anyway, it's a limitation in disguise, I was saying, it's an ancillary right at the end, it's more an ancillary right which is imposed on publishers or copyright owners, not because they wanted a group of publishers opposed that provision from the very beginning, not Aede, who's the ones who were behind it. Notice that unlike any other limitation, it's not for the benefits of the users, but for the benefits of the copyright owners, which doesn't make sense for the limitation. And at the end, it's basically, as the minister said, we're going to subsidize one industry with another. But let me just, what happens now? Just very briefly, nothing, business as usual. We have this provision in the law, but we're not applying it, right? Google News closed the Spanish news a month after the provision was enacted. But basically, according to the available data, the publisher said that they haven't looked or have felt any big difference in traffic, maybe 3% loss, maybe 9% loss. Maybe the Spanish people don't read newspapers online, maybe they don't search for news, maybe they just go to the newspaper they like and they want to be fed and they don't bother about what other newspapers may say. Or maybe it's just that you can still get the news through the search engines, right? Through the general Google search engines, and through other news sites, be it in Spanish, or be it from friends or any other European country. So basically, I was, as if it didn't exist, and I'm finishing it here, Meneane, which is the big aggregator of links, is basically doing the same. They know they are risking any particular demand or claim from the publishers, but the publishers are not doing anything. In fact, I was calling yesterday, who's the collecting society, who should be doing this compulsory management. The collecting societies now in Spain are re-assessing and renegotiating all the fees according to the new law. They should have the work done by this summer and they were telling me we're not doing anything about it. Right? So a death foretold, as I told you. In any case, let's hope anything that happens in the EU doesn't go the Spanish way, right? German and the Spanish experience. It's now for Sir Christian to tell us about what happened in Denmark. I am Sir Anna Armisen. I also am very pleased to have been invited to come here today, giving me an opportunity to visit Amsterdam for the first time, actually. And I find it very confusing, but I managed to find my way here and I hope you enjoy what I have to say. I come to you fresh from the battlefield. Denmark has been disproportionately well represented in recent European copyright litigation, not least of course as a result of not one but two references to the European Court of Justice in Infopak, which was a case that I was very intimately involved with Infopak at the time being my client. I'm going to tell you a little bit about four Danish cases that I actually think say a lot about what we're all thinking about in the context of this seminar. And it's quite interesting actually to see how the litigation in Denmark has developed over the years because it brings together a lot of the issues that people are coming to this debate with. I'm not going to start therefore with Infopak because that's a relatively recent case. I'm going to take you back to 1987 where this of course is before the internet but nonetheless there was a Danish service called Online Avicen which translates directly into online newspaper. What Online Avicen was doing was basically to write resumes of newspaper articles and provide those resumes to clients. Today we would think I hope that that's a relatively uncontroversial service not infringing anybody's rights if you're doing it that way but in 1987 the Danish Association of Newspaper Dailies actually sued Online Avicen and argued not in the first instance copyright infringement but a breach of fair dealings. Okay so what what the newspapers were saying in the 80s was that essentially this service was freeriding on the efforts that the news providers had undertaken. And this case went to the Danish Supreme Court and the Danish Supreme Court rather emphatically said no this is not a breach of fair dealings you are in fact allowed to provide this service notwithstanding that of course it is based on the efforts of somebody else. So since the 80s Danish law has said very clearly in principle as a business model this is allowed. Okay so that's a very important point of departure from a Danish context and maybe a discussion which which is still outstanding in other countries and it's important to remember of course that fair dealings which is essentially a branch of competition law is not harmonized on the European Union level so we can have different approaches here and not least keep the ECJ out of it. Some time went by and the internet arrived and it didn't take long of course after the advent of the internet before Denmark also experienced news aggregation services much like the ones we know today one of the early entries on the Danish market was a news booster. The battle between the Danish association of newspaper dailies and news booster resulted in a ruling which is in the handouts that you see that you've been provided with today. In that case the newspapers won they were actually able to injunt the news booster service not on the basis of copyright infringement but as I would assume is interesting to a lot of you on the basis of database rights. However this ruling is from 2003 so it entirely predates the fixtures rulings from the ECJ and in my opinion the news booster case isn't really worth anything today because it doesn't apply the fixtures criteria from the ECJ and there was no evidence whatsoever in those proceedings concerning whether in fact a an online newspaper service is a database in the sense of the directive. So don't look to news booster for conclusive finding on that point. Also bear in mind that the news booster ruling was actually or news was actually when bankrupt during the proceedings and the state the administrator decided not to contest the case any further so essentially what we ended up with was a summary judgment and all know the value of those kinds of rulings. Three years later there was a third Danish case which I also had the privilege of working on called Ofia the Ofia case which was not a such a news media case but a very interesting example of a national court actually in my opinion applying the fixtures criteria correctly. The case was between a Danish real estate broker or actually the biggest Danish real estate broker and a portal service called Ofia and what Ofia did was that it actually it aggregated all of the real estate brokers listings online in its own portal. Now again this raises issues of free riding concerns and also of course database rights and the case came to court and was very heavily litigated and full evidence and the court found that the real estate broker did not have database rights in their online listings because essentially it is a spin-off of their main business which is to sell real estate and they had not provided evidence of a substantial investment in the accumulation of information as such and the Danish court said explicitly in the reasoning that it is the purpose of the database directive to provide protection for that specific investment and there was no evidence to that and since then we have not seen any attempts in Denmark from newspapers or other media to invoke database rights. Infopark accordingly was not about database rights it was actually about a technical procedure involving scanning of prints. Infopark was originally a traditional resume writing news service and what they wanted to do was to rationalize some of their processes and introduce less man-hour-demanding aspects and one way they thought they could do it this again was before the dawn of the internet as such was to simply scan print copies of newspapers and identify keywords in doing so rather than having to read every page of every newspaper to identify the keywords. When the Danish Association of Newspapers was aware that Infopark was going to do this and we decided to preemptively sue the newspaper association and apply for declaratory judgment not knowing that this would result in two references to the ECJ and almost 10 years of litigation but I'm sure you are well aware of what happened in the ECJ and they essentially decided at the first round to answer some questions that we actually didn't ask so we had to go back with seven more questions to focus on the technical process that was actually the issue in the matter and I am glad to say that I think we won on that point. Thank you. I'm sure the US has its share of similar problems without probably the issue of a neighboring right being part of the discussion. I give you the floor. Thank you and I may also not only be one of the few Americans in the room one of the few former journalists in the room before being a lawyer I was a newspaper reporter. When I was a newspaper reporter in Las Vegas, Nevada I was enraged whenever the radio station or the TV station would pick up the newspaper and read on the air the story that I had written the night before that delivered the news that I thought was interesting. The concept of being enraged and wanting some reparation around that feeling is in some ways where copyright law emanates from the feeling or notion that the author has some right to control the use of his expression. In the US as an ink-stained wretch I had no reparation. My words were not owned by me they were owned by the newspaper. The newspaper this is the work for hire doctrine in the US. The newspaper didn't feel a need to go after the TV or radio stations that were broadcasting the words that I had written because they felt no threat the concept of a misappropriation toward or the hot news toward doctrine in the US was such that is such that there was no need for the newspaper to go after the TV station because the TV station wasn't obtaining sufficient revenue off of the exploitation of the newspaper's content that it was a threat to the newspaper. I mention all of this because that paradigm of ripping and reading is what we used to call it. Ripping and reading the content from a newspaper and disseminating it through a different medium is exactly what Google does. It's exactly what the aggregators do. And it is the paradigm that it was okay for TV stations radio stations to do this that led to I think some sense that aggregators were not harming news organizations that there was not enough of a damage to the business model to use the words that there was a need to pursue legal action. And as a result I think Google and other news aggregators got a foothold, a precipice to hold on to and lo and behold we learned that the medium of digital aggregation was much more powerful than TV or radio ever was. And I think there is room for debate about whether or not digital aggregation is replacing newspapers. The slides shown about the decline in revenue and the decline in advertising for print news organizations are dramatic. They are similar in the U.S. An interesting question is the extent to which dollars for advertising have been replaced by dimes or pennies for digital impressions. Ultimately the same decline that has occurred in the U.K. in terms of employment of news organizations has occurred in the U.S. And interestingly the same increase in employment for PR as news organizations have gone down, PR organizations have gone up. I was asked by Richard to speak a little bit about the hot news doctrine in the U.S. It emanates from a case, this will be the earliest citation we've heard today, from 1918 INS versus AP, the Associated Press, a client of mine, I did not represent them in 1918. The circumstances if you don't know of the case are interesting and they speak to the fundamentals of the concept of a hot news tort. And it is that the Associated Press would have reports and they would put the reports in the window of the Associated Press' office in Manhattan. And William Randolph Hearst, he of the Robert Baron Hearst mansion out in California had a new service called INS International News Service and he had folks go to the window of the Associated Press and read the AP's reports. Mr. Hearst's wires were faster than the AP's wires for reasons that I don't understand. And the news got to the west coast faster than it got on the INS's wires than it got to the AP. This is classic free writing. This is taking the work of someone else and disseminating it and causing others to pay for someone else's work. It went to the U.S. Supreme Court. The U.S. Supreme Court held that this was indeed free writing and it was not proper. Interestingly this was a tort claim in the U.S. we would consider it a common law claim. It was not a copyright claim. It was not a federal copyright claim and this is an important distinction in the U.S. experience. It wasn't a copyright claim because it was about facts. And in the U.S. approach facts are not copyrightable. They are not owned in the free expression context. Facts are free to be used by anyone. In any event U.S. Supreme Court held that this was a tort claim for misappropriation taking the labor of someone else. Fast forward 100 years to today when the kind of free writing that occurs is for example Fly on the Wall case. Fly on the Wall is an organization that aggregates the stock recommendations of various stock brokerages. The buy, sell, or hold recommendation of Merrill Lynch or others. The court held in the Fly on the Wall case that what Fly on the Wall was doing of disseminating the buy, hold, or sell recommendation was what news organizations do and it was news that Merrill Lynch recommended to sell AEG stock. And that as a result of its news collection effort Fly on the Wall which otherwise looked to the stock brokerages as an aggregator was in fact a news organization and entitled to disseminate and therefore not barred by the concept of free writing. It was not free writing because it was merely disseminating facts not expression. Contrast that decision to the AP versus Meltwater case in which Meltwater was doing something very similar it was aggregating AP's content. The court held in that case very much in line with INS versus AP that Meltwater was indeed free writing. That there was a improper exploitation of the labor that AP had put into generating the information that Meltwater was disseminating. In between those cases is an interesting case involving Bloomberg News which was recording, interesting, the stock recommendation, the stock performance reports by Swatch. Swatch is not a listed stock in the U.S. and therefore not subject to SEC securities exchange commission regulations around disclosure and it would have closed calls with stock analysts. Bloomberg was such that it was able to get someone who was part of those closed calls to record the calls and provide the recording to Bloomberg. Bloomberg then disseminated the recording of the calls that Swatch was having with analysts. Swatch sues, says copyright and I'm sorry doesn't say copyright because Swatch doesn't own the content in the expression but does say hot news misappropriation of the value free writing on our effort. The U.S. Second Circuit finds that that was first a fair use and second not free writing because there was value in what Bloomberg supposedly was doing by providing the actual words and the actual sound of the recording that there was value in the inflection, value in the tone of voice and that Swatch did know that and that therefore Bloomberg was providing news information through that dissemination. Ultimately and so Bloomberg was held not liable in that context for disseminating the content of those stock analysts calls. I don't think there is a sort of sum it up kind of conclusion around this except to say that the American experience is one where the intersection of the hot news doctrine and copyright law and in the U.S. experience the fair use concept has made it tremendously unpredictable to advise clients about what the outcome will be whether your client is a news aggregator or a news generator and as a result of that uncertainty it's what was suggested before the U.S. experience is we don't go to court. We negotiate licenses. We negotiate. Thank you panelists for four very different portraits of legal developments in different jurisdictions but there is a sort of a common thread here. A lot of what we're hearing is not really working at least not from the perspective of news publishers in need of some help. I have a specific question to both of our first speakers Michael on Germany and Raquel on on Spain. You both concluded that these new instruments were not effective different instruments an exclusive right approach and a remuneration right but you also criticized the drafting of your national texts. My question to both Michael and Raquel is could a better drafted version of your national legislation have helped would that have led to an income stream from Google in particular to the news publishers in need of support. Michael. Well it depends what you meet and what you call a better version. It would have been possible the first draft introduced to the German Bundestag was more specific and particularly the exception with regard to individual words or smallest of text excerpts was not found in the first draft but the problem and arose is well aren't we going too far in really in really putting exclusive rights on this kind of information and do we make it too difficult to share this information even when it is perfectly reasonable and economically viable to share this information. So the problem with the bad wording at least in the German case is that this is the result of a compromise of trying to balance exclusive rights on one side and the necessity of access rules to favor the usage and the competition on the other side and this shows that if you want to try to make a compromise and a new ancillary right the compromise might not turn out to be perfect it might not work in both ways because as we seen and this is important with Google for example it didn't stop Google. Google had enough market power to get to get the consent but it stopped a lot of small services and I think that's something regulators really need to consider. We can try to target Google with either exclusive rights or with remuneration rights but at the end what we target and I think that's also my understanding in Spanish law what we target at the end is European service providers possible competitors to Google. We make it way harder for European businesses to really enter this market in a digital area and we should particularly right now if we are investigating on European level and the service practices of Google we should make sure that we don't give with the other with one hand that the competition at always then have to examine on the other hand. That's a very important point. Raquel? Well as before if it had been better drafted and would have referred to the news probably the the effects might have been not so bad as I has anticipated but it would not have caught Google after all Google closed the the Google news site and what's doing basically is putting a at the mockless you know sort on top of the small ones which are fearing that despite you know they keep linking to everybody maybe one day the newspapers will come and ask for the remuneration but what I think is that even with the better drafting the problem that I don't think newspapers it's like be careful what you wish for but the newspaper don't realize is that with this kind of limitation they will not be allowed to prevent aggregation from working they will not be allowed to put robots to stop because it's a mandatory limitation it's you know they it's like an essential facilities kind of license that's up there and they will not be able to put their own price so even with a better drafting I think the result would have been the same or even worse and Google of course out of the out of the picture so are you are does the law say that the newspaper publishers cannot technically prevent well it doesn't say so but if it's a mandatory license it means they are forced to let the aggregators link to them and just subject to compensation for damages of course the newspapers are not putting any robots now they never did but in Spain at least they are not putting it because they cannot because the law doesn't allow them to prevent this kind of the use linking and that's something that no one is talking about I think that it was too fast they did it they drafted the night before they didn't know what they were getting into and they ended up with something that's not in their the interest of the news publishers I would say maybe a Russian thing it was fast in Spain was not as fast in Germany as Jan Hegemann said earlier first discussion started in 2009 and then we had the enactment in 2013 so we had four years of intense discussion and legal debate so that's the thing if we do it fast the result might not be admirable if we take our time the result might not be very much better either so one has to consider these things even more carefully okay I have I'll give you the floor in a second okay I'm sure you have a repost but first I have a question along the same line two other panelists here Chris you told us about the good old hot news doctrine almost a hundred years old now and of course we've heard similar arguments and and and also attempts to implement similar doctrines of misappropriation here in Europe in fact that Derek Fissel already mentioned free riding as possibly a subject to unfair competition claims some countries it will work and others it won't my question to you is probably saw this one coming has the free has the hot news doctrine been applied to Google in the US the answer is no and the reason is in large measure a function of what I mentioned at the end what happened was that Google and Yahoo both entered into negotiations with major news organizations and they engaged in they result it resulted in licenses that were not compulsory but did result in revenue coming to the news organizations the trouble has been that the news organizations revenue from those license arrangements has not kept pace with the decline in advertising there is a an interesting for the economists in the room question as to whether or not the news organizations decline in revenue has been caused by news aggregators there I think the folks from Google would vehemently dispute that that there is a cause and effect relationship but in any event the answer to your question is Google has never been charged no claim has ever been brought against Google as a result of a hot news theory and in large measure it's because they negotiated licenses and on what basis did they negotiate the licenses if there are if fair use applies if hot news is dubious what was it a purely voluntary arrangement we tell you that if there are four lawyers and you ask for lawyers for a copyright opinion about fair use you will get five opinions and the reason and that uncertainty is the reason why the news organizations and Google reached a negotiated agreement because they couldn't predict what the outcome would be and the businesses are much more likely to want predictability as opposed to outright ultimate victory ten years of litigation is just not what a business can live with it wanted a revenue stream that they could count on okay thank you for this first round of discussion I'm sure that everyone in the audience is aching to contribute and ask questions uh Professor Hageman already was aching uh visibly um yeah it's it's just one one remark I'm perfectly in line with uh what Michael Greenberger uh said that the German legislator could have done much better than he did it was a four years discussion and it's a perfect example if you look deeply into it on lobbying on counter lobbying on making compromises and then at that was when I intervened yes we did a long discussion but most of the things of one very very important thing that causes all these problems now came into the law just in the last minute these are the single words the group of single words that is uh uh accepted uh uh from the right and that shows how difficult that is and that was the last minute decision uh and it uh it remembers me uh or I see it very similar to what what happened in in in Spain okay other questions I see a few hands there in the back I see uh yes over there in the back hi uh you already have a mic okay yeah i was to state your name i was to invite us from the consumer organization I have a question for Raquel in relation to the Spanish law was actually quite intriguing and this but it was this the character of the equitable compensation so how this would work or could be applied in practice how what are the elements that would be necessary to assess that there is a harm and then to quantify the necessary compensation any views on on on that yeah well in this report that the commission on markets and competition said that that report issued said precisely the government has passed this without any evidence that there's a damage in the market that needs to be compensated and truth be told there has never been produced any evidence in that sense not even through the year of parliamentary proceedings so how will the if that was in place that compensation was in place what should the collecting society do the collecting societies must I say because we're always thinking of Pedro which is the ones that you know handles managers and news publishers but also the other ones I was saying the contents is very big very wide in that sense so they will have to start I don't know there's a new order saying how the the collecting societies are going to establish and their fees one of the issues the factors that they need to evaluate is the money the revenues that the exploiter of the copyright that the user of the copyright is doing so I don't know how compensation would be assessed or compared to compensation the damages when you're looking at the money that the aggregators is making there's you know there's a whole gap there so I saw much better that thank you about this punish case leaving aside the question of whether they the law was well drafted to some extent it worked in the sense that it had an effect that google news pulled out of of the market do you think that there's any other scenario in which the law might have had a different effect I mean it's given that the aggregators always have freedom to just stop the service under what circumstances could you have seen a different result in which in which the aggregator actually changes the business practice well I disagree with your premise that the provision did not have the effect that they expected no no no I mean they didn't expect to close out of course but it wasn't the aggregator wasn't indifferent to the to the new law that they did have a reaction so yeah what other reaction could there possibly have been given that they were always free to just stop the service given that I'm sorry they were always free to just say we are going to shut down well no the reaction they expected I guess naively if you want to if I may say is that the that would force google to sit at the table and you know get the publishers and google to agree on a compensation so it didn't happen well didn't happen on the terms of the law it's also true that about the after a few months there was an agreement which involved el país and other european news new published news publishers maybe some of you are more aware of it than me the decision the digital something initiative and el país which was the big newspaper behind aede you know got some some deal with google and other EU newspapers and I mean that's to provide for research funds for making journalism more in contact I don't know you know better you're the expert but not in connection but that's but not in connection with that so any effects that this limitation wanted to do to have it didn't have and okay sorry if I if I I'll just I'll stop here but where I'm going is that if we have that that evidence from Spain and the other evidence that's somewhat different but but also points into similar direction from germany I'm struggling to think of how can anything how can any provision achieve the intended effect of generating that that's of course a key question for this whole conference even that any aggregator and maybe not in copyright law right maybe that's that Richard was saying this morning there's very many issues here at state copyright maybe one of them maybe copyright is not the tool to address these maybe solution certain has something to yeah I actually I actually do have a comment touching on that specifically because I want to bring back what dirt was saying in the earlier session and of course it's fascinating to hear the experiences from from germany and from Spain but I would like to point out as dirt did earlier because I also have the privilege of representing quite a lot of broadcasters and they have and have had for decades and an ancillary right and I can tell you that they're hurting too you know so they're blaming YouTube which is essentially also Google but but but they're also lose their business is declining because the behavior of their consumers is changing okay so uh I propose to you that if the intended result is to generate more revenue for news publishers the example of the broadcasters tell you that the way to achieve it is not to introduce a new ancillary right have to find something else that's a very interesting point we have two questions in the room till Karatsa one remark to the so-called flaw of the german law with regard to the tiniest excerpts would they exempt it in the last stage of the procedure and that is no coincidence that we have this thing which is so hard to handle it represents and proves the internal struggle in within the government the german government because there were two parties in the coalition who had to agree on that and the one party the liberals were totally opposed and and to the ancillary copyright in in the broader sense completely in the conservatives they wanted it so it was compromised to say and we simply leave the question open whether the linking and snippeting in search engines of a common kind of nowadays is covered by this right or not so let the cool the the courts rule it out and we might say this is the worst decision they could ever take right comment over there or question i have a short question concerning the pricing what i have not understand understand as understood as of now is what is actually the the key criterion for finding the pricing are we trying to value the content that is offered by the publishers or are we trying to value the amount of input that is provided by the publishers to the search engine when they generate income michael that is a tough question let me frame it this way let's let's think for a second the germany had introduced a levy like the spanish regulation and then it would have been up to the legislator or to first the the collecting society to come up with with a levy proposal and how do we how do we arrange this kind of levy proposal and what's what the german publishers came up with in their first attempt is they argued that google is using their content as a crucial part of attracting revenue and we are here going into a platform economics and this is pretty a territory i'm not very familiar with so i have to be careful with what i'm saying but when you when you discuss platform economics you have you have several key factors in players and the one factor that we all have been discussing here is we have users and users we all want users attention that's basically what the user pays for services it's his and her attention and there are several key players in the market now and users are attracting their attention to the product that seems most accessible and easy to reach so far for the user and then we have players that want to provide for content but they don't create their own content they link to content they share content and and it's clear that they provide services by using content content has to be produced by someone and has to be paid for by someone i think we all can agree on that so how do we establish the correct price usually if you if you look at a copyright negotiations it's basically the basic estimate is look i have a product here and i estimate it at this and this value and then you look for somebody who's willing to pay that price but we do have a lot of market failure in in copyright law one example is scientific libraries and scientific journals complete market failure when it comes to digital digital subscription based models so we have to have limitations and exceptions in order to remedy that situation here we don't have that so the arbitration board in munich basically said look six percent they started with 11 percent of total revenue share that was the first idea then they came down to six percent six percent of the total revenue share is way too high is not correct enough it has to be a clear assessment on what actually is the input the publishers give and google uses so we don't know and that's the problem and i think that the good effect of the american solution is well if there is negotiation so it's up to the parties to negotiate but the problem in our system is and that's the difference with the american system in the in the european copyright system there's always the threat of the injunction back there so we have the injunction and the injunction can't stop a business model and maybe maybe we should do it more like the european patent system is doing it now that injunction is but an opportunity is an equitable relief so if we change the remedy system there then we would give the parties more space to freely negotiate the copyright licenses and i think that's that's something that we should inquire that's enough another valuable insight i have one more no now three hands uh dick was first and we also have only five minutes left by the way i do want to add yet another example of something that does not work that is the database right connected to the inner web case you might be familiar with the inner web case it's a dutch case about a website a meadows meta search engine for websites on which they sell second hand cars in that case the european court of justice was much stricter than in the svensson case and ruled that in fact it's a parasitic business model and that is contrary to the database right so the owners of second hand car websites now have the right to forbid this made the send meta search engine we're not talking about google here i of course i also love to blame everything on google and say that google always is the bad guy and that google is the source of all the problems but here we're talking about a very small meta search engine which apparently has a lot of added value which is quite easy to understand because people don't have to visit seven different dutch second hand car websites they can just go to one website called gasp and up and it can search all those websites so what happened this is one particular website won the case and then it did as i as i understand it did itself it did exercise the right so you cannot find that particular second hand car website anymore on hospital but you can find all the others because apparently all the other second hand car websites in the netherlands agree that it was actually a good thing to be more visible not just through google but also through this very small meta search engine called hospital so apparently also in this situation if there is some kind of meta search engine which has really added value in the sense that consumer like it it's a good thing just one more example and i'm a bit more involved in that so i have to be careful we have it in a radio portal called natelandfm the radio portal has just 40 links to websites which have radio stations on it and a lot of advertising and initially a dutch court ruled that that's actually an infringement of copyright that was priest venzin that hyperlinking was an infringement of copyright based on that a deal was made percentage was paid to the collecting site there was no problem problem solved then kept sensing along and all of a sudden there was no reason for payment anymore at least not to the individual authors but there is an arrangement between the radio portal and the radio stations the radio stations have a pre-roll preceding every broadcast available through the radio portal so they make money out of that also so they also have a nice deal in that position the radio stations which are in the same position as a news publisher have concluded the deal okay just on contract law but the the individual authors don't get anything that's a bit of a pity it's a bit more than a bit of a pity um let's uh i think we yeah we have three or four minutes left i we have uh two hands uh yeah your first andrew andrew hughes outlay media access i think everybody wants a free market solution and a negotiated solution but the problem is the market isn't free um because there is a great imbalance of power in the market and and therefore you end up looking for solutions and the solutions will tend to be clumsy solutions you are you know we've had levies in most european countries not in the uk for years that's a pretty clumsy solution i think we're talking here about a big gap in the funding of news and as the Spanish minister says the aggregators are making money they should give some to the news players they're trying to achieve that it's always going to be clumsy i think you have to decide whether you want to address that gap or not and i think being gleeful that the gap hasn't been addressed by the clumsy solutions doesn't really take you for it very far forward but there is a valid question here of course raised by many now i think uh why aren't the newspaper publishers in in europe doing this negotiating with google i they have portrayed themselves as very small compared to google of course they are at the individual level but if you collectively would look at them i i actually remember that some of these are part of very large media companies that are i try once they refuse to negotiate they just refuse to talk about they is google you mean google yes and i but apparently they are talking to newspaper publishers in the u.s so i was just wondering it's a difference of power but maybe you can answer collective negotiation or individual individual of course happens collectively there are rules about competition which make them nervous about working together and they have very different strategies financial times i used to work for paywall guardian chasing traffic they're all confused about the future i think most people should be confused about the future we can't see it it's tough to see but you do need to decide whether you want to address the news deficit and then you need to decide how to do it and i think being happy that solutions aren't working isn't really a very mature response to that issue i don't think anyone said they're happy i i detected a degree of happiness um that the german and spanish publishers attempts are failing um and i don't think that's a very mature response to the situation now kehl do you want to respond just adding some information i think the reason why google and the newspapers are not google doesn't want to talk about licensing copyright and the newspapers do so it's well it gives them a different position google says let's split revenues but let's not talk about copyright because if you start with copyright then you're at different position bargaining position right and the newspapers don't want that either because they say well if i license copyright i'm in a stronger position than you are so it's a bit because i have the exclusive right so yeah it's like that's where the legislation is okay quick last question but really very short i'll be very quick um just to the point of pricing that someone made um we've worked a fair bit on similar question in the context of tv distribution uh which is very similar economics and in in commercial context what you do there is you compare how much money would be at stake on each side of the of the deal so how much revenue the platform would lose if the say in this case the linking didn't happen and also how much the publishers would lose and if the two are more or less similar you can agree on some sort of zero point that nobody pays the price the other if it's very unbalanced then the negotiation might go in the other direction the regulations when when there are regulations about this or or some sort of arbitrated outcome uh sometimes they try to to mimic that sometimes it's it's quite different we can we can speak afterwards in the particular case of spain i forgot to mention my previous question uh there's a study by susan ethi uh from from the states that looked at what happened to the major spanish publishers after the shutdown of google news she found that for the audience segments that used to be google news uh users there was a significant drop in their usage of the major publishers so it seems that at least for the major publishers there was a significant loss for the affected segment which was a very small segment of the of their overall audiences so it was just a blip but for for that particular only on the other hand the big question would be what was the the loss for google if that was very small then that would suggest that they didn't have much of a stake in this okay final round very quick final word for each of our four panelists max one minute michael you first yeah the one thing first i think it is a lawyer's task to examine solutions that have been proposed and to evaluate them if they work and if they don't work and if we know that the exclusive rights solution and the levy solution uh don't work we have to look for some of that so we gain some knowledge i think that's an important part second thing that i think is quite important to remember so far we've discussed models on a national level and it seems the common understanding seems that member states are pretty free to introduce uh and ciliary and neighboring rights as they place i would caution i would severely caution because i think the closer we come to the core copyright harmonization of the infosack directive the more difficult it gets to introduce uh neighboring rights as member states please i call well one minute just that the spanish solution didn't work because they didn't achieve what they wanted to which is to sort of upset the balance the bargaining balance between the two parties and google just closed down but i think the matter if we're going to look at it from a copyright perspective it should be the authors who get the remuneration and no one is talking about them right and the newspapers go to google and they ask remuneration for them the authors are not going to get anything so if it was really a matter of copyright enforcement we would be talking about completely different ballgame here so i think that if the news publishers have some sort of free riding concern against what google is doing that should be you know fought in another area not within copyright but maybe in fair competition or whatever is it going to be but not copyright because we're distorting it sir thank you i already talked about broadcasters and their experiences in in in prevailing on the basis of their exclusive rights and i would also just like to point out because i i'm unluckily not able to offer the solution the silver bullet here but i would like to point out we are at a point in time where copyright as i see it has never been stronger in part as a result of info pack one so i i also think it's interesting to hear today that copyright holders who were able to enforce their copyright if they wanted to choose not to do it vis a vis google and i think that's an important aspect of what michael was talking about really about the competition concerns that could also potentially come out of introducing new regulation to the benefit of news publishers and from a public policy perspective i think that i agree that's very important to to have taken into consideration chris final remark what would you advise the europeans i would not advise the europeans i would suggest that thinking about it from the public policy question of is the public served by the diminution of employment among news organizations there's an interesting question and it was brought to the fore by the fact that we still have investigative journalism going on the panama papers was an effort by journalists to collect news that wasn't really under the auspices of a single news organization and i'm interested in the extent to which the public is still receiving information that it needs to govern itself they're not receiving it all the time from news organizations they're receiving it from other sources and that may not be a bad thing i'm interested in thinking about whether or not the ultimate public good is over the generation of new information and how do we achieve that whether it's through an ancillary right i'm not convinced okay thank you all thank you our panelists in particular for very interesting diverse contributions and you have deserved not a right but a chocolate from the netherlands and it's and here it is