The ancil­lary copy­right for press pub­lish­ers is applic­a­ble to the form of pre­sen­ta­tion cho­sen by Google (and oth­er search engines and news aggre­ga­tors) to dis­play search results. This was decid­ed by the Arbi­tra­tion Board of the Ger­man Patent and Trade Mark Office as the spe­cial author­i­ty respon­si­ble for this issue on 24 Sep­tem­ber 2015.The Arbi­tra­tion Board stat­ed in its deci­sion that Google makes use of the dig­i­tal prod­ucts of press pub­lish­ers in its ser­vices, not­ing that “press prod­ucts increase the over­all adver­tis­ing val­ue and attrac­tive­ness of the search engine”. In the pro­ceed­ings of VG Media ver­sus the search engine oper­a­tor and qua­si-monop­o­list Google, it was clar­i­fied that the tar­iff estab­lished by VG Media is applic­a­ble in prin­ci­ple. How­ev­er, in order to deter­mine the details of the tar­iff, VG Media is depen­dent on data which only Google has avail­able, accord­ing to the Arbi­tra­tion Board. Thus, the ancil­lary copy­right for press pub­lish­ers is not only enforced in the first step, but Google is oblig­ed to pay remu­ner­a­tion to press pub­lish­ers. Jour­nal­ists will also ben­e­fit in the form of a remu­ner­a­tion claim anchored in the law.

Markus Runde, Man­ag­ing Direc­tor of VG Media: “The ancil­lary copy­right for press pub­lish­ers is applic­a­ble. With­in the mean­ing of copy­right law, Google makes use of press prod­ucts in the var­i­ous Google sur­faces. Impor­tant issues have thus been resolved by the com­pe­tent Arbi­tra­tion Board. Com­pa­nies such as Google that gen­er­ate up to €5 bil­lion in rev­enues per year in Ger­many by oper­at­ing a search engine should not only take advan­tage of the free and order­ly eco­nom­ic activ­i­ty in Ger­many, but should also accept the enforce­ment of Ger­man law as an essen­tial con­di­tion of this free­dom, and should there­fore now seek a com­pro­mise agree­ment with us, as pro­posed by the Arbi­tra­tion Board.”

Maren Ruh­fus, Man­ag­ing Direc­tor of VG Media, adds: “The deci­sion of the Arbi­tra­tion Board pro­vides valu­able insights for the intro­duc­tion of an ancil­lary copy­right for press pub­lish­ers through­out Europe. VG Media will fol­low the Euro­pean Commission’s invi­ta­tion and will active­ly con­tribute its know how and expe­ri­ence from this case to the polit­i­cal debate at the Euro­pean lev­el.”

Through VG Media, press pub­lish­ers will also enforce their claims against Google for the peri­od as of 23 Octo­ber 2014. The dec­la­ra­tions of a free-of-charge con­sent and the deci­sion of the Ger­man Fed­er­al Car­tel Office pur­suant to Sec­tion 32c of the Act against Restraints of Com­pe­ti­tion (GWB) do not stand in the way of this. Google abused its dom­i­nant mar­ket posi­tion to force press pub­lish­ers to give their free con­sent. These dec­la­ra­tions of con­sent are there­fore ille­gal under com­pe­ti­tion law and thus invalid. Numer­ous press pub­lish­ers already insti­tut­ed legal pro­ceed­ings against Google at the Berlin Region­al Court in Decem­ber 2014 to clar­i­fy this ques­tion. The ancil­lary copy­right for press pub­lish­ers was passed by the Ger­man Bun­destag in 2013 and entered into force on 1 August 2013. It states that search engines and news aggre­ga­tors must pay remu­ner­a­tion to press pub­lish­ers for the use of press prod­ucts. Google (and oth­er search engines) had pre­vi­ous­ly denied the applic­a­bil­i­ty of the law vis-à-vis VG Media, which is man­dat­ed to enforce the ancil­lary copy­right for a large num­ber of press pub­lish­ers.

For more infor­ma­tion on the ancil­lary copy­right for press pub­lish­ers, the tar­iff of VG Media and the pro­ceed­ings to enforce the law, see www.LSR-aktuell.de, the infor­ma­tion ser­vice of the VG Media press pub­lish­ers for the pro­tec­tion of prop­er­ty and diver­si­ty in dig­i­tal media mar­kets.