Arbi­tra­ti­on: Micro­soft must pay Corint Media € 1.2 mil­li­on

Preli­mi­na­ry decisi­on fol­lowing urgent request. Final decisi­on will be expec­ted mid 2023, remu­ne­ra­ti­on likely to be hig­her then.

Press Release
Ber­lin, 2022-12-20

The Arbi­tra­ti­on Board at the Ger­man Patent and Tra­de Mark Office (DPMA) has pro­po­sed an inte­rim pay­ment of 1.2 mil­li­on euros from Micro­soft in the dis­pu­te over the use of press con­tent by the search engi­ne Bing. The Arbi­tra­ti­on Board fol­lows an urgent request by Corint Media. The pay­ment is to cover the peri­od sin­ce 7 June 2021, when the press pro­tec­tion law came into for­ce in Ger­ma­ny. The undis­pu­ted pay­ment is based on a remu­ne­ra­ti­on amount of 800,000 euros per year for Corint Media’s reper­toire — 36 per cent of Ger­man press out­lets. Both Micro­soft and Corint Media have agreed to this pro­po­sal.

The inte­rim remu­ne­ra­ti­on repres­ents a “pro­vi­sio­nal arran­ge­ment” which is inten­ded to allow the legal­ly secu­re use of press con­tent until a final decisi­on is made by the arbi­tra­ti­on board. A final decisi­on on the amount of the appro­pria­te remu­ne­ra­ti­on is to be made by mid-2023. Here, Corint Media expects ano­t­her incre­a­se in the amount of remu­ne­ra­ti­on in the first instance.

The inte­rim pay­ment now pro­po­sed has no pre­ju­di­cial effect on the com­ing decisi­on on the appro­pria­te remu­ne­ra­ti­on. The Arbi­tra­ti­on Board at the DPMA issued its decisi­on in expe­di­ted pro­cee­dings under Sec­tion 106 of the Collec­ting Socie­ties Act (VGG). Corint Media had filed this urgent app­li­ca­ti­on due to the urgen­cy of the cla­ri­fi­ca­ti­on. Plat­forms such as Microsoft’s Bing, but also Goog­le, Face­book and others have been unlaw­ful­ly using the con­tent of press publis­hers sin­ce June 2021, which should be remu­ne­ra­ted under the Press Publis­hers’ Right. The Arbi­tra­ti­on Board’s decisi­on is the first known urgent appeal to be gran­ted by the Arbi­tra­ti­on Board. This shows the need for quick decisi­ons in a field whe­re tech­no­lo­gy com­pa­nies, with their free use of pro­tec­ted con­tent, harm the hol­ders of the­se rights on a dai­ly basis.

With this pre-decisi­on on an appro­pria­te remu­ne­ra­ti­on, the Arbi­tra­ti­on Board is brea­king new ground in copy­right law. Alt­hough it had alrea­dy ruled in 2015 on the “old” press ancil­la­ry copy­right that the remu­ne­ra­ti­on deman­ded by Corint Media in the amount of 11 per cent of the tur­no­ver was “in and of its­elf appro­pria­te for an ent­i­re reper­toire”. Howe­ver, fur­ther fun­da­men­tal ques­ti­ons could not be con­clu­si­ve­ly cla­ri­fied. Accord­ing to the Arbi­tra­ti­on Board, the ques­ti­on of a sui­ta­ble basis for cal­cu­la­ti­on could only be cla­ri­fied in fur­ther pro­cee­dings after detail­ed dis­cus­sion with the par­ties invol­ved. This assess­ment, as well as the decisi­on its­elf, is signi­fi­cant for the nego­tia­ti­ons with Goog­le on the use of the Corint Media press rights. Google’s attempt to crea­te facts about the value of the press rights with low-pri­ced indi­vi­du­al con­tracts thus fails. While Microsoft’s Bing only has a maxi­mum mar­ket share of five per cent in the Ger­man search engi­ne mar­ket, Goog­le has a mar­ket share of about 93 per cent, which is about 18–20 times hig­her. Google’s cur­rent offer is, in rela­ti­on to the mar­ket share, signi­fi­cant­ly lower than Microsoft’s offer. Corint Media has signed a licence agree­ment with Eco­sia, a search engi­ne deve­lo­ped and ope­ra­ted in Ber­lin that is com­mit­ted to refo­re­sta­ti­on, among other things. Eco­sia accep­ted the cus­to­ma­ry level of remu­ne­ra­ti­on set by Corint Media and, with this law-abi­ding beha­viour, sent a signal to the mar­ket that suc­cess­ful busi­ness is also pos­si­ble without avoiding pay­ment obli­ga­ti­ons.

Mar­kus Run­de, Chris­toph Schwennicke, Mana­ging Direc­tor Corint Media:“The pro­po­sal of the Arbi­tra­ti­on Board at the DPMA is a decisi­ve signal for the Ger­man press: Their rights must not be igno­red and the envi­sa­ged remu­ne­ra­ti­on must not be arti­fi­cial­ly redu­ced. Howe­ver, this inte­rim ruling is not a final decisi­on on the amount of appro­pria­te remu­ne­ra­ti­on. It does, howe­ver, show the amount that users such as Micro­soft, Goog­le and Face­book must pro­vi­sio­nal­ly pay to avoid unlaw­ful use. The deter­mi­na­ti­on of the actu­al amount of remu­ne­ra­ti­on is still pen­ding. The arbi­tra­ti­on board will pro­bab­ly deci­de on this by mid-2023: Corint Media assu­mes that this remu­ne­ra­ti­on will once again be signi­fi­cant­ly hig­her than the inte­rim pay­ment. This is also important becau­se jour­na­lists can only par­ti­ci­pa­te appro­pria­te­ly in the reve­nues of the ancil­la­ry copy­right with a trans­pa­rent decisi­on of the instan­ces — as inten­ded by the legis­la­tor. Con­fi­den­ti­al indi­vi­du­al con­tracts, such as Goog­le is cur­r­ent­ly con­clu­ding, repre­sent an attempt to avoid this par­ti­ci­pa­ti­on — on the backs of the actu­al aut­hors. This must not be allo­wed.

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