France will soon introduce an ancillary copyright for press publishers. Google has now announced that it will by default no longer display snippets in its search results. But publishers will be able to change this by themselves.

France Introduces New EU Publishing Law

The EU Copyright Directive entered into force in June 2019. The Member States have two years to transpose the requirements into their national law.

France seems to be in a great hurry. A new copyright law will come into force at the end of October 2019. It will contain an ancillary copyright for press publishers as described in Article 15 of the Directive.

This means that providers of online services – especially Google – can be charged if they use a press publication in whole or in part. Only "individual words or very short extracts" can be used freely.

The French government apparently expected Google to "make it rain". But once again the company has made it clear that it will not pay any royalties for using press publications within its search services. The Minister of Culture Franck Riester seems to be surprised. He calls Google's reaction "unacceptable".

What Will Change at Google Search?

Google has announced that it will identify all press publications in the European Union that will be covered by the new regulation. Those who have not been included can add their website to the list if they want. Those who are wrongly listed can have their website deleted from it.

When the new French copyright law comes into force in October, Google Search will by default display links to the listed press publications only with their headlines. No snippets, no thumbnails, no videos.

However, press publishers who want to have these things displayed will be able make the desired adjustments individually.

Predictable Reaction

Those who are surprised by this step do not seem to have been on Google News lately. Some time ago, a shortened display of links to press publications was tested there and finally implemented.

And when the German collecting society VG Media claimed license fees arising from the German ancillary copyright for press publishers in 2014, the US company also announced that it would only display the headlines in its search engine.

Google has always declared that it is not willing pay for linking to publishers' online content in search results. The company rightly points out that publishers benefit at least as much from Google as vice versa. Publishers rely on clicks to earn money through ads or selling subscriptions. Google brings them clicks. According to its own statement, more than eight billion per month in Europe alone. And every click is worth pure money: four to six cents, as a recent study by Deloitte estimates. 

Publishers Can Decide for Themselves

From now on, publishers will be able to decide very precisely whether and how their content will appear in Google's search results. Invisible search engine instructions (robots meta tags) make it possible to modify the display.

It was already possible to prohibit the total display of a snippet for each article separately (nosnippet tag). What is new is that in the future it will be possible to determine which parts of the text should not appear in the snippet. In addition, the maximum character length of the snippets as well as the size of thumbnails and videos can be defined.

Hypocrites Will Unmask Themselves

For years, advocates of the ancillary copyright have been calling for granular adjustment options, particularly the Axel Springer Verlag. The existing possibilities were not sufficient enough, they said. Google has now fulfilled their wish. Starting in October, each press publisher will be able to decide whether and in what form search engine results will be useful to it and to shut down allegedly harmful representations by their own.

When fighting for their new right, press publishers have repeatedly claimed that Google would use their contents illegally and that snippets would harm them. According to them, users would be satisfied with reading only the snippets and would no longer click on the link to get to the full article on the publisher's website. If this was the real reason for demanding an ancillary copyright, they should now be satisfied as they can adjust the search results linking to their websites themselves or exclude their contents completely from Google's search engine. But that would be a very unrealistic assumption.

Rather it is to be expected that the publishers will in most cases re-activate the display of (useful) snippets in the search results. Useful are those that make users click on the link. And for this to happen, the previews must have some substance and ideally contain a small picture.

It can also be expected that the publishers will still demand licence fees for the search results to be displayed in the way they have set it up. On the one hand, they want their articles to be listed as often and as prominently as possible in the search results. On the other hand, they want to be paid for the free advertising effects generated by search engines. But this absurd calculation – as we have always predicted – will not work! 

New Legal Questions

What are the legal consequences if a publisher actively ensures the display of snippets and thumbnails and makes use of the new adjustment options? Can it still demand royalties from Google?

This would lead to the following situation: The press publisher itself indicates whether and how it will be found on Google. Then it asks Google to pay. If that doesn't happen, the press publisher will prohibit the search provider from displaying the snippet it has modified on its own. Will the courts follow? Unlikely.

What is more likely is that, in accordance with the case law of the Federal Court of Justice, the courts will consider the adjustments made to be a form of consent. Hence, Google is allowed to use the snippet without obtaining additional rights or paying fees.

The ancillary copyright for press publishers will in any case continue to occupy the courts. The fact that individual publishers are prepared to invest millions in court proceedings has already been proven in Germany. Google will certainly defend itself against the lawsuits accordingly.

The outcome is very predictable: Google will not pay any money to display links to press publications. If the publishers don't begin to understand this, they – at least some of them – will burn a lot of money for pointless litigation. Can the struggling industry not put this money to a better use? 

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