Berlin Regional Court

Ancillary copyright for press publishers: determination of the claim to compensation by the Berlin Regional Court

The enforcement of the ancillary copyright for press publishers enters the next round on 7 February 2017 with oral proceedings before the Berlin Regional Court. Following proceedings at the Arbitration Board of the German Patent and Trademark Office (DPMA), this will be the first court trial on the enforcement of the ancillary copyright for press publishers. At the request of VG Media, the court must initially determine whether Google is a user of digital press products in terms of the ancillary copyright law. If this is found to be the case, Google is obliged to pay the publishers for damages from its unlicensed use of their products. Google will then be required to disclose its German sales figures so that damages can be quantified.

Lawsuit on the enforcement of the ancillary copyright for press publishers
The primary subject of the oral proceedings before the Berlin Regional Court is the copyright-related evaluation of the legal dispute between VG Media and Google with regard to enforcement of the ancillary copyright for press publishers. The court will interpret the relevant paragraphs of this law and examine whether the ancillary copyright applies to the relationship between the rights holders at VG Media and Google. Should the court agree with the position of VG Media, it must then decide whether Google is liable to pay damages to the organisation for the unlicensed use of press products. To assign a specific value to the compensation due, it is important to know what economic advantages Google has gained through the use of the press products. This determination will then be taken as the basis for any indemnity claim. As part of this suit, VG Media has therefore requested that Google be required to disclose to VG Media its sales figures from its various services. The regional court will not make a ruling on the amount of the compensation claim or an appropriate licensing rate at this initial stage, but only after the required information has been issued.

VG Media also claims damages for the period after Google’s forced authorisation, from October 2014, to use press products without paying compensation. In this trial, the Berlin Regional Court must therefore additionally rule on Google’s actions with regard to antitrust law and, with that, on the validity of the authorisation it obtained for the uncompensated use of press products. However, concerning the question of Google’s actions from an antitrust perspective, an antitrust injunction suit brought by numerous press publishers is currently pending in the Court of Appeal in Berlin, meaning that the decision of the regional court in this matter will not be of singular importance.

On the background to the debate
The background to this legal dispute is the implementation of the ancillary copyright for press publishers. After passage by the German Federal Parliament, this law took effect on 1 August 2013. It attributes to press publishers the exclusive right to make their press products publicly accessible for commercial purposes. The law applies vis-à-vis operators of search engines and news aggregators, such as Google. Since its introduction, search engines and news aggregators have been required to obtain a licence for the use of press products in the digital sphere. As rights holders, publishers can demand payment for the issuance of a licence to use their products. Only the link itself, along with very short text excerpts used to describe the press article link, are exempt from this.

It is precisely this balancing of interests in financial terms that legislators had in mind in passing this law. Without the ancillary copyright, press publishers would have no leverage against the uncompensated use of their products by internet companies. Through the display of press articles, these companies generate considerable sales revenue, of which the press publishers have received no share up to now. Yet it is the press publishers who finance journalism, who evaluate, prepare and present information, and who ensure a diverse media spectrum. With its protection of ownership for editorial service, the ancillary copyright for press publishers thus plays an important role in a democracy in preserving press freedom and a plurality of opinion in the internet age.

Since the introduction of the law, Google has refused to pay for its use of digital press products in its various offerings. In legally required proceedings in advance of the court case, the Arbitration Board of the German Patent and Trademark Office – the designated authority for civil disputes of this kind – determined that Google uses digital products of press publishers. It has proposed a seven-word limit for the unlicensed use of press products. Because Google nonetheless continues to categorically refuse to pay for its use of outside content in its offerings, the Berlin Regional Court must now rule in the case.