13 September 2019CopyrightRory O'Neill

Google avoids German copyright payout after govt bungle

The Court of Justice of the European Union (CJEU) 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.

In the judgment, handed down yesterday, September 12, the CJEU found that Germany failed to notify the European Commission of the new law after it was passed in 2013—breaching the Commission’s rules and rendering the new law unenforceable.

The case made its way to the CJEU after VG Media, a group of German publishers, sued Google for displaying news snippets without paying a royalty.

Germany updated its Copyright Act in 2013 to give press publishers the right to demand a fee for using these snippets for up to one year after publication.

VG claimed that Google had violated the laws and demanded damages for the unauthorised use of its members’ content.

The Berlin regional court referred the case to the CJEU, seeking clarification on whether the law qualified as a “technical regulation” under EU Directive 98/34, also known as the information society directive.

The directive specified that member states were required to notify the European Commission of any draft technical regulation covering information society services.

According to yesterday’s ruling, German government submissions during court proceedings established that “the main aim and object of the national provision at issue in the main proceedings was to protect those publishers from copyright infringements by online search engines”.

As such, the provisions qualified under the directive as they were brought in for the purpose of “regulating information society services”, the court found.

Google successfully argued that the press publishing law was unenforceable as the government failed to notify the Commission of the technical regulation at the time.

The decision is line with the opinion issued by advocate general Gerard Hogan last December.

Speaking to WIPR, Eleonora Rosati, associate professor in IP law at the University of Southampton, said that “what now needs to be clarified is what happens to the revenues already paid under the law”.

Rosati said that it had been mooted since at least 2015 that the law was potentially unenforceable, and that Germany would now have to clarify the position of those who had already paid royalties.

The CJEU referred the case back to the Berlin court for a determination on costs.

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More on this story

13 December 2018   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 of the Court of Justice of the European Union.