Is the German press publishers' right lawful? More details on the CJEU reference

As reported by this blog a few months ago, the Court of Justice of the European Union (CJEU) has been required to address issues of lawfulness - notably enforceability - of the German neighbouring right for press publishers.

Why a CJEU reference?

Back in May, in fact, the Landgericht Berlin decided [here] to stay the proceedings in the litigation between the collecting society responsible for collecting royalties in favour of publishers (VG Media) and Google, and make a reference for a preliminary ruling to the CJEU. 

The purpose of the reference is to receive guidance on the actual enforceability of the German press publishers' right. 

Directive 98/34 requires in fact Member States to notify the European Commission of any  “technical regulations” that they intend to adopt. This is to allow the Commission to assess their impact on the internal market. Apparently German Government failed to notify the Commission because of impending elections in Germany at the time.

Already in 2015 Bo Vesterdorf (former president of what is now the General Court) had argued that both the German (but also Spanish) initiative(s) in favour of press publishers would be unenforceable because of their lack of notification to the European Commission. 

The Berlin court has now asked the CJEU to determine whether the rules adopted in Germany should be considered "technical" and, if so, what the effect of their missed notification is.

From Berlin ...

The German press publishers' right

Adopted in 2013, the Leistungsschutzrecht für Presseverlege introduced into the German Copyright Act new provisions - sections 87f, 87g and 87h - which provide for the exclusive right of press publishers to exploit their contents commercially for one year, thus preventing search engines and news aggregators from displaying excerpts from newspaper articles without paying a fee. Readers will also remember that the same day the new provisions entered into force, Google News became opt-in in Germany.

The rationale underlying this legislative initiative is similar to what is currently under discussion at the EU level in the context of Article 11 of the proposed Directive on copyright in the Digital Single Market, ie addressing declining revenues in the press publishing sector [Katposts here]. One of the ideas underlying initiatives like the German one is that the advent of the internet, including news aggregation services (ie aggregators of syndicated web content in one location, an example being Google News), as primarily responsible for this phenomenon. 

... to Luxembourg

The questions to the CJEU

Further to the CJEU reference, the questions in VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google Inc, C-299/17, have been finalized and are now available on the Curia website.

They are:

1.    Does a national rule which prohibits only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute, under Article 1(2) and (5) of Directive 98/34/EC (as amended by Directive 98/48/EC), a rule which is not specifically aimed at the services defined in that point,

and, if that is not the case,

2.    does a national rule which prohibits only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute a technical regulation within the meaning of Article 1(11) of Directive 98/34/EC (as amended by Directive 98/48/EC), namely a compulsory rule on the provision of a service?

More to follow! 

[Originally published on The IPKat on 2 October 2017]