The Regional Court of Berlin has referred the dispute between Google and VG Media over the controversial ancillary copyright to the ECJ (decision of 09.05.2017 – 16 O 546/15). The ECJ is to rule on the question of whether the EU Commission should have been informed prior to the adoption of the ancillary copyright law. VG Media is representing various German press publishers such as Axel Springer, Dumont, Funke and Handelsblatt in the dispute.
Google vs. VG Media – A dispute over the use of snippets
In the legal dispute before the Regional Court, it is to be determined that Google Inc. is liable to pay damages to the publishers. This is because Google uses its online service “Google Search” to display text excerpts, images etc. from press products in its results list (snippet). This is a great help for Google users. They can quickly decide whether the individual search results are relevant for their purposes or not.
Snippets of the relevant search results from press publishers are also displayed in the results list on “news.google.de”. This snippet is often the introductory teaser of the article. This can be specifically defined by the operators of the news websites via the “meta description”.
Ancillary copyrights protect publishers
The ancillary copyright regulated in Sections 87f to 87h UrhG is intended to protect press publishers from a third party publicly displaying their press products or using them for commercial purposes. If the press products are nevertheless used, a claim for damages arises.
So far, Google has refused to pay for the use of snippets and the display of text snippets or preview images. This is because, in the opinion of Google Inc. the search results direct users to the publisher’s website, which generates advertising revenue for them.
Berlin Regional Court considers VG Media’s claim to be partially justified
However, the Berlin Regional Court has so far assumed that VG Media’s claim is partially justified. However, this is only the case if the provisions of the Copyright Act have been validly enacted and are applicable. However, according to previous case law, the effectiveness depends largely on whether a notification procedure was necessary and carried out when the standard was enacted.
Are ancillary copyrights effective? – The ECJ should decide
A notification procedure must always be carried out if the draft laws are “technical regulations” and are aimed at “information society services”. With regard to the ancillary copyrights in the Copyright Act, however, such a notification was not carried out in order to implement the law before the new federal elections in fall 2013.
The decision now lies with the ECJ. If it decides that the ancillary copyrights are “technical regulations”, a notification procedure should have been carried out. This would have rendered the German regulations invalid and VG Media’s lawsuit unfounded. If, however, the ECJ decides that the ancillary copyrights under Sections 87f to 87h UrhG are not “technical regulations”, the law would have been validly enacted and VG Media’s claim would have been partially justified.