Corint Media files an app­li­ca­ti­on with the Arbi­tra­ti­on Board against Goog­le

Corint Media brings action befo­re the Arbi­tra­ti­on Board of the Ger­man Patent and Tra­de Mark Office (DPMA) con­cer­ning abu­si­ve use of press con­tent by search engi­ne group Goog­le

Press Release
Ber­lin, 2022-07-22

After the super­vi­so­ry board of Corint Media unani­mous­ly pas­sed a reso­lu­ti­on to this effect on 4 July 2022, Corint Media yes­ter­day app­lied to the Arbi­tra­ti­on Board of the Ger­man Patent and Tra­de Mark Office (DPMA) for a sett­le­ment order regar­ding unaut­ho­ri­sed Goog­le use. A neu­tral decisi­on by the Arbi­tra­ti­on Board on the amount of remu­ne­ra­ti­on is inten­ded to put an end to the con­ti­nued unlaw­ful uses of digi­tal press pro­ducts by Goog­le also under copy­right law. Sin­ce the law came into for­ce on 7 June 2021, Goog­le has alrea­dy been using publis­hers’ rights without con­sent and paying Corint Media and the majo­ri­ty of Ger­man press publis­hers not­hing in return. To date, Goog­le has not infor­med eit­her the publis­hers or Corint Media about how the press con­tent is used by way of repro­duc­tion and making it publicly avail­ab­le not only in the Goog­le eco­sys­tem, but throughout the ent­i­re Alpha­bet group.

With the app­li­ca­ti­on sub­mit­ted yes­ter­day, Corint Media is asking the Arbi­tra­ti­on Board to rule abo­ve all on the amount of the rea­son­ab­le remu­ne­ra­ti­on for the undis­pu­ted use of the press pro­ducts as well as other non­discri­mi­na­to­ry licen­sing con­di­ti­ons. This is a con­sis­tent step to have it con­fir­med that Google’s pay­ment offers in the lowest per mile ran­ge are not only con­tra­ry to car­tel law, but also unfair under copy­right law.

Pre­vious­ly, at the begin­ning of this year, the Federal Car­tel Office had alrea­dy issued a basic ruling against Goog­le as a com­pa­ny with out­stan­ding cross-mar­ket signi­fi­can­ce, thus paving the way for ex-ante, i.e. advan­ce, regu­la­ti­on under the new­ly crea­ted Sec­tion 19a GWB. At the same time, the Federal Car­tel Office, fol­lowing a com­p­laint by Corint Media, initia­ted anti­trust admi­nis­tra­ti­ve pro­cee­dings against Alpha­bet, as well as against Goog­le, for abu­se of a domi­nant posi­ti­on, abo­ve all through the offers of so-cal­led Goog­le News Show­ca­se con­tracts and becau­se of the deli­be­ra­te under­mi­ning of the right to pro­tec­tion of press ser­vices expres­sed the­r­ein. It was not until 28 June 2022 that Corint Media was offi­cial­ly invi­ted as a par­ty to the­se anti­trust admi­nis­tra­ti­ve pro­cee­dings, which con­ti­nue to be decisi­ve for the enfor­ce­ment of publis­hers’ rights, by the com­pe­tent decisi­on-making depart­ment of the Federal Car­tel Office. The three publis­hers’ asso­cia­ti­ons BDZV, MVFP and VDL have mean­while also app­lied for par­ty sta­tus in the­se important anti­trust admi­nis­tra­ti­ve pro­cee­dings.

Des­pi­te this action, Corint Media is open to con­ti­nue to offer Goog­le a licence agree­ment in the amount of 420 mil­li­on euros p.a. for the repre­sen­ted rights port­fo­lio. The amount of the claim men­tio­ned fol­lows the com­mon licen­sing prac­ti­ce in copy­right law of paying 11 per cent of the audi­ted reve­nues gene­ra­ted from third par­ty copy­rights and neigh­bou­ring rights as rea­son­ab­le royal­ty pay­ments. After Goog­le rejec­ted the­se claims as “baseless”, Corint Media also unsuc­cess­ful­ly offe­red Goog­le several inte­rim agree­ments with inte­rim lower remu­ne­ra­ti­ons in order to at least end Google’s unlaw­ful use sin­ce 7 June 2021 (ent­ry into for­ce of the Ger­man Press Publis­hers’ Right) and thus enab­le Goog­le to use the mate­ri­al in a law­ful man­ner.

Goog­le has offe­red Corint Media a pay­ment of 3.2 mil­li­on euros, which should sett­le all rights. This cor­re­sponds to less than one per cent of Corint Media’s claims and less than 0.03 per cent of Google’s esti­ma­ted tur­no­ver in Ger­ma­ny of appro­xi­mate­ly 11.3 bil­li­on euros in 2021. Against this back­ground, Corint Media can­not con­firm that Goog­le — as cur­r­ent­ly clai­med — has sought to nego­tia­te with Corint Media.

Con­tra­ry to Google’s repre­sen­ta­ti­ons, press con­tent is the cen­tral, over­ri­ding value for the ent­i­re Goog­le eco­sys­tem. This is illus­tra­ted abo­ve all by the con­stant­ly incre­a­sing tur­no­ver of the Goog­le search engi­ne and the ent­i­re Goog­le eco­sys­tem in Ger­ma­ny, which is not visi­ble from the out­side and who­se tur­no­ver is hid­den in the audi­ted annu­al finan­cial state­ments of Goog­le Ire­land Ltd. The out­stan­ding impor­t­ance of press pro­ducts is not only pro­ven by the annu­al dou­ble-digit incre­a­ses in tur­no­ver. A recent stu­dy by Pro­fes­sor Mat­thew Elli­ot of Cam­bridge Uni­ver­si­ty also comes to the exem­pla­ry con­clu­si­on that Goog­le earns around one bil­li­on euros direct­ly and immedia­te­ly from press con­tent in the UK alo­ne. Howe­ver, the Bri­tish mar­ket is only about 70% of the size of the Ger­man mar­ket in terms of gross domestic pro­duct (GDP). In the Aus­tra­li­an mar­ket, Goog­le pays around 100 mil­li­on euros to selec­ted press publis­hers for the use of their con­tent. In Fran­ce, too, Goog­le pays a high dou­ble-digit mil­li­on amount for the use of some press rights.

Mar­kus Run­de and Chris­toph Schwennicke, Mana­ging Direc­tors of Corint Media, com­men­ted: “Unli­ke in Fran­ce, for examp­le, we have the legal pos­si­bi­li­ty in Ger­ma­ny to have the amount of appro­pria­te remu­ne­ra­ti­on deci­ded by an arbi­tra­ti­on board with a high level of exper­ti­se and pro­fes­sio­na­lism and deca­des of expe­ri­ence. As a neu­tral body, the arbi­tra­ti­on board will deter­mi­ne how high an appro­pria­te remu­ne­ra­ti­on for press publis­hers and their edi­tors should actual­ly be and how the ille­gal situa­ti­on crea­ted by Goog­le to the detri­ment of publis­hers and their jour­na­lists should now be ended. The neu­tral deter­mi­na­ti­on of the amount is of para­mount impor­t­ance. Howe­ver, a decisi­on by the Federal Car­tel Office is essen­ti­al for the enfor­ce­ment of the law by paying an ade­qua­te remu­ne­ra­ti­on against the mar­ket domi­na­tor Goog­le. Goog­le wants to pre­vent any trans­pa­rent uni­form pri­cing in the new­ly crea­ted mar­ket for press publis­hers’ rights. Howe­ver, this was and remains the decla­red inten­ti­on of the EU and Ger­man legis­la­tors. The law app­lies to all, even to glo­bal­ly ope­ra­ting mar­ket domi­na­tors. This is one of the gre­at pro­mi­ses of our con­sti­tu­ti­on (Grund­ge­setz), which at the same time pla­ces the press and its impor­t­ance for opi­ni­on-forming in par­ti­ci­pa­to­ry demo­cra­ci­es under the spe­cial pro­tec­tion of Arti­cle 5 GG. We trust in quick decisi­ons by the Arbi­tra­ti­on Board. ”

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