13 December 2018Copyright

German courts cannot apply ancillary copyright law, says AG in Google case

Germany’s new copyright provisions cannot be applied by the courts as Germany did not notify the European Commission of the legislation’s introduction, according to an advocate general (AG) of the Court of Justice of the European Union (CJEU).

AG Gerard Hogan delivered his opinion today, December 13, in a dispute involving copyright collecting society VG Media and technology company Google.

In 2013, Germany introduced new copyright new, known as Leistungsschutzrecht für Presseverleger (ancillary copyright for press publishers) to extend publishers’ online rights.

The new provisions provided that commercial internet search engines (and commercial service providers which edit content) are not entitled to provide excerpts, other than very short text segments, of certain text, video, or image content provided by publishers without authorisation.

Germany did not notify the Commission of the change in legislation.

After the new legislation’s implementation, VG Media, which manages copyright and related rights of press publishers, filed a complaint against Google at the Berlin Regional Court (Landgericht Berlin).

The suit related to Google’s use of text excerpts, as well as images and videos, which came from content produced by VG Media’s members. Google had not paid a fee to use the content.

But the Berlin Regional Court considered whether Germany’s new legislation counts as a technical regulation aimed at an information society service, which requires that the Commission be notified for the law to be applicable under directive 98/34.

It asked the CJEU for clarification on whether the new legislation counts as a technical regulation covered by the directive, which governs rules on the information society.

Today, Hogan opined that it does.

In theory, member states’ legislators can respond to changing consumer habits—like increased internet use—Hogan said. He acknowledged that powerful search engines, such as Google, have undermined the traditional commercial models of newspapers.

However, this does not mean that member states are entitled to by-pass the notification requirements of directive 98/34. The AG said that this is necessary to make the Commission aware of the legislative plans and consider any potential implications they may have for the internal market.

In this case, Germany’s new rules were enacted to strengthen the IP rights of press publishers and to promote press freedom, and the effect is to make search engines subject to either a prohibitory order or a monetary claim, instigated by a publisher.

As a result, the principal aim of the new provisions targets internet search engines, meaning that the new law is specifically aimed at information society services and falls within directive 98/34.

Hogan said that national provisions which prohibit commercial operators of search engines from making press products (or parts of them) available to the public constitute rules specifically aimed at information society services.

Therefore, national provisions—such as the one at issue here—are subject to the notification obligation under directive 98/34, the AG said.

As Germany failed to notify the Commission of its new copyright provisions, they cannot be applied by the German courts, Hogan opined.

As reported by WIPR, article 11 of the recently-passed EU copyright directive includes a similar provision to Germany’s 2013 law. The directive has yet to be implemented in the EU.

But the so-called “link tax” has been widely criticised, and Fabian Böttger, counsel at Baker McKenzie in Munich, Germany, told WIPR that many publishers in Germany chose not to make use of the new protection as they want to ensure that their content continues to be shown by news aggregators.

The CJEU does not have to follow the AG’s opinion.

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More on this story

31 July 2018   The Berlin Court of Appeal has clarified the responsibilities of copyright licensees when it comes to preventing third-party infringement via ‘framing’.
6 October 2016   Law firm Taylor Wessing hosted a copyright seminar yesterday and discussed press publishers’ ancillary rights.
13 September 2019   The Court of Justice of the European Union yesterday handed a victory to Google, after it ruled that a German law allowing publishers to demand royalties for the use excerpts of their content is unenforceable.