Germany Wants To Define A Snippet As Seven Words Or Less; Doing So Is Likely To Breach Berne Convention

Techdirt has been following with a certain amusement the humiliating failure of German publishers to bring in a "snippet tax" that would force Google and other search engines to pay for displaying even short quotations from their publications. The most recent defeat for the copyright industry was the German competition authority announcing that it would not "punish" Google for refusing to take out a license for snippets because, well, Google had a perfect right not to do so. The Disruptive Competition (DisCo) Project Web site has an update on the continuing saga, and it's as crazy as the rest of the story:

The Copyright Arbitration Board of the German Patent and Trade Mark Office (DPMA) recently recommended that snippets, i.e. small text excerpts used by search engines and online aggregators below hyperlinks, can comprise exactly seven words. This suggestion is part of the DPMA's recommendation to privately settle a dispute between online services and press publishers over Germany's ancillary copyright, also termed the 'snippet levy'. Should a court confirm this recommendation, snippets which go beyond this limit of seven words would in theory have to be licensed from news publishers.

As the DisCo post goes on to explain, that weirdly precise limit is a result of a last-minute change to the German snippet law, which carved out "individual words and smallest text excerpts" from its scope. Of course, that begs invites the question: how big could that "smallest text excerpt" be? For reasons that are not clear, the Copyright Arbitration Board suggested that the answer was "seven words long". The DisCo post points out there would be an interesting and unexpected consequence of adopting that seven-word limit on snippets officially: it would put Germany in conflict with its obligations under the Berne Convention on copyright. In the 1967 revision to the Convention, a mandatory right to "short quotations" was changed to one allowing "quotations". Here's why that matters:

imagine a situation in which snippets, a modern form of quotations, are reduced to seven words. From a practical point of view, it is safe to say that they are useless for Internet users who would find it difficult to find the information they are actually looking for. From a legal point of view, most would probably agree that a seven word quotation is rather 'short' -- and exactly this conflicts with international copyright law which guarantees meaningful (and useful) quotations going beyond 'short' quotations.

In a delicious irony, then, the German publishers' insane pursuit of the completely unworkable "ancillary" copyright protection for snippets could result in the country breaching fundamental obligations under the world's main copyright convention.

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