The Berlin Region­al Court resolved today to ini­ti­ate a pre­lim­i­nary rul­ing pro­ce­dure before the Euro­pean Court of Jus­tice as to whether the noti­fi­ca­tion require­ment applies to the ancil­lary copy­right for press pub­lish­ers, which took effect on 1 August 2013. In the announce­ment of its deci­sion, the Berlin court stat­ed explic­it­ly that it con­sid­ers the VG Media press pub­lish­ers’ law­suit against Google Inc. to be at least par­tial­ly jus­ti­fied. It fur­ther main­tained, how­ev­er, that the ques­tion of whether – con­trary to the view of the Fed­er­al Gov­ern­ment – the Euro­pean Com­mis­sion should have been noti­fied of the law before its enact­ment, must still be exam­ined.

On the deci­sion of the Berlin Region­al Court, Markus Runde, Man­ag­ing Direc­tor of VG Media, com­ments: ‘The Berlin Region­al Court is to sub­mit only if it views the sub­stance of the law­suit, in whole or in part, as jus­ti­fied. Only then does it comes down to the ques­tion of noti­fi­ca­tion; only in this case is sub­mis­sion called for. The Fed­er­al Gov­ern­ment was under no inher­ent oblig­a­tion to noti­fy the Euro­pean Com­mis­sion of the intro­duc­tion of the ancil­lary copy­right for press pub­lish­ers, as the ancil­lary copy­right does not rep­re­sent a tech­ni­cal reg­u­la­tion in terms of the applic­a­ble direc­tive. Only reg­u­la­tions which ulti­mate­ly and inten­sive­ly restrict the com­mence­ment or exe­cu­tion of a ser­vice of the infor­ma­tion soci­eties are con­sid­ered tech­ni­cal reg­u­la­tions in terms of the direc­tive. This is not the case where an intel­lec­tu­al prop­er­ty right does not impede the ren­der­ing of a ser­vice, but mere­ly leads to an oblig­a­tion on the part of the search engine oper­a­tors to pay com­pen­sa­tion for the mon­e­tary ben­e­fit obtained. Unlike the Berlin Region­al Court, the Fed­er­al Gov­ern­ment assumed, and con­tin­ues to assume, that there was no noti­fi­ca­tion require­ment with regard to the enact­ment of the ancil­lary copy­right for press pub­lish­ers, and that the law there­fore applies. VG Media agrees with this under­stand­ing.’

Back­ground

The ancil­lary copy­right for press pub­lish­ers took effect on 1 August 2013 after pas­sage by the Ger­man Fed­er­al Par­lia­ment. It pro­vides that search engines and news aggre­ga­tors must remu­ner­ate press pub­lish­ers for the use of dig­i­tal press prod­ucts.

The sub­ject of the law­suit before the Berlin Region­al Court is the enforce­ment of the ancil­lary copy­right for press pub­lish­ers against Google Inc. The Arbi­tra­tion Board of the Ger­man Patent and Trade­mark Office ini­tial­ly decid­ed that the ancil­lary copy­right applies and that Google and oth­ers are cat­e­gor­i­cal­ly oblig­at­ed to pay. The fur­ther enforce­ment by the court became nec­es­sary because Google cat­e­gor­i­cal­ly refus­es to recog­nise the applic­a­bil­i­ty of the law passed by the Ger­man Fed­er­al Par­lia­ment or the pay­ment oblig­a­tions which arise from the law. Antitrust ques­tions regard­ing the abuse of mar­ket pow­er by Google and the legal­i­ty of its forced secur­ing of con­sent are being decid­ed on in sep­a­rate pro­ceed­ings before the Berlin Court of Appeal and the Euro­pean Com­mis­sion. These issues play a sub­or­di­nate role in the course of this copy­right-relat­ed law­suit.

VG Media is the col­lect­ing soci­ety of the pri­vate broad­cast­ing com­pa­nies and press pub­lish­ers, and is based in Berlin. It rep­re­sents the copy­rights and ancil­lary copy­rights of near­ly all Ger­man and a num­ber of international pri­vate TV and radio broad­cast­ers, as well as over 200 dig­i­tal pub­lish­ing offer­ings.