What does the ancillary copyright for press publishers protect?
The ancillary copyright for press publishers protects them against the uncompensated use of their press products by search engines and news aggregators. By displaying press articles, these search engines and news aggregators in some cases generate considerable sales volumes, which the press publishers do not receive a share of. Yet it is the press publishers who finance journalism, who evaluate, prepare and present information, and who ensure a diverse media spectrum. The ancillary copyright for press publishers thus plays an important role in preserving press freedom and a plurality of opinion in the internet age.
How is the ancillary copyright for press publishers enforced?
The copyright lawsuit before the Berlin Regional Court is the central trial on the enforcement of the ancillary copyright for press publishers. Parallel to this case, the press publishers in VG Media are proceeding with an antitrust suit against Google’s practice of forcing publishers to grant uncompensated authorisation.
What is the subject of the lawsuit between VG Media and Google?
The objective of the lawsuit is the enforcement of the ancillary copyright for press publishers vis-à-vis Google. Since the law came into force on 1 August 2013, press publishers have had the exclusive right to decide whether search engines and news aggregators are allowed to make their press products publicly available, in whole or in part, in the digital sphere. For the licence to disseminate their press products, the press publishers can demand compensation from the search engines and news aggregators. Google, the largest search engine, is in defiance of German law by categorically refusing to pay for the use of press content.
What will the European Court of Justice decide on in its ruling?
The Berlin Regional Court initiated a preliminary ruling procedure before the European Court of Justice on 9 May 2017 as to whether the notification requirement applies to the ancillary copyright for press publishers. 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 in 2013, must still be examined.
Is the German ancillary copyright for press publishers compliant with EU law, even though no notification has been conducted under Directive 98/34/EC?
The German Federal Government did not see an obligation to conduct a notification of the ancillary copyright for press publishers under Directive 98/34/EC. The corresponding law does not specifically target information society services in terms of Directive 98/34/EC. The aim of the ancillary copyright for press publishers is to establish an exclusive right for publishers granting them the same right as other right holders in the online sphere. As an exclusive right, the German ancillary copyright acts towards everyone and is therefore not a special rule in terms of the directive. This understanding has been confirmed by the Arbitration Board of the German Patent and Trademark Office in its settlement proposal of 24 September 2015.
Does Google use press products?
Yes. In its various online services, Google uses digital press products of the press publishers in VG Media. Search engines and news aggregators must obtain permission and pay compensation to use press products, with the exception of the link itself and very short text excerpts briefly describing the press article being linked to. Before copyright disputes with collecting societies can be brought to court, they are heard by the Arbitration Board of the German Patent and Trademark Office. This Arbitration Board, the designated authority for civil disputes of this kind, has determined that Google uses press products, and has proposed that the uncompensated use of such products be limited to seven words.
Does Google have to pay to use press products?
Press publishers can demand compensation for permission for search engines and news aggregators to disseminate their products. Because Google uses the press products but is not willing to pay compensation to do so, the company is obliged to pay damages to the publishers.
How much does Google have to pay press publishers?
The amount of the damages depends on the sales volumes Google achieves from its unlicensed use of the press products. Up to now, Google has refused to reveal its company sales figures and, just as categorically, has refused to pay for the use of copyrighted press products. The court must therefore also decide whether Google is to be required, for the first time, to disclose the sales volumes that the company achieves through its use of German press content.
What arguments does Google use in its own defence?
Google rejects the claims of VG Media primarily on the basis of the argument that the display of press products in its search results benefits the press publishers by generating additional traffic to their digital content. This argumentation fails to recognise the principle of participation – which is derived from constitutional law on the protection of property and has been accepted in copyright law for decades – according to which the appropriate compensation for an act of use is measured solely according to the economic advantages gained by the search engine or news aggregator. The use-based generation of traffic to the publishers’ websites, as mentioned by Google, is therefore irrelevant with respect to copyright law.
Why do press publishers require their own ancillary copyright?
Through their work, press publishers lay the organizational, technical and economic foundations for maintaining a diverse press landscape. In order to ensure that the publishers will still be able to play a crucial role in the age of digitalization, the ancillary copyright for press publishers was introduced on 1 August 2013 by the German legislator. Until then the existing law did not provide sufficient protection for publishers with regard to the online use of their press products. Press products, or extracts thereof, could be used and copied indefinitely without the user having to obtain a license beforehand. It is the explicit aim of the legislator to ensure that press publishers are able to protect and – if desired, monetize – their products by means of an ancillary copyright for press publishers. Thus, press publishers were to benefit from a further means of refinancing. Therefore, both diversity of products and competition between publishers, are ensured.
But publishers do benefit from the usage of their products in search engines. Why should search engines pay for it?
Right holders are entitled to receive their fair share from the exploitation of their rights by users. This constitutes a basic principle of copyright. There are numerous examples where usages of intellectual property rights benefit both, user and rights holder alike. For example, record labels benefit, when music performed by musicians which they have under contract, is played on the radio. But this does not exempt the radio station from an obligation to pay for usage of the music itself. The same applies to the usage of press products by search engines or news aggregators. Both very much like radio stations - benefit greatly from the improved attractiveness of their product, which is generated by press products. In addition, many users stop short of reading a news publisher’s own website, when they are able to gain some information about a certain topic only by skimming the search engine result page. As a consequence, the publishers lose immense scope and ad revenue.
Does the ancillary copyright for press publishers not affect the wrong entities, such as small search engine operators or start-ups?
The compensation from the ancillary copyright for press publishers takes into account the revenue of the platform operator achieved by using the content. This can happen either in the way stipulated in the tariff published by VG Media, or through other possible calculation methods, such as suggested by the arbitration board. The ancillary copyright for press publishers thus ensures equity and fair competition: Small search engines with lower yields automatically pay less than large search engines.
Who is addressee of the ancillary copyright for press publishers?
As per § 87g para. 4 of German Copyright Law, the addressees of the ancillary copyright for press publishers are solely "commercial providers of search engines or commercial providers of services that condition the content accordingly". The latter are so-called news aggregators. All other uses of a press product, e.g. by other businesses, associations, attorney offices, bloggers or private users are thus explicitly exempted from the scope of the ancillary copyright for press publishers.
Is there evidence that search engines turn a profit from the display of press products?
There are several studies that confirm the significance of press products for search engines. According to these, users rely on quality content for their search and expect to find press products among the results of search engines.
What hinders a broader application of ancillary copyright for press publishers?
Because, in particular, Google as the by far largest user of digital publishing content decidedly disagrees that its exploitations fall within the scope of the ancillary copyright for press publishers. Other important users share this attitude. Hence, the law must first be enforced before the courts. Only after their judgments have confirmed its applicability, a broad implementation of the law will be successful.
As a first step, the arbitration board of the German Patent and Trademark Office (GPTO) in its rulings against the search engine operators Google, Yahoo!, and Deutsche Telekom, has confirmed the applicability of the ancillary copyright for press publishers.
In addition, during cartel proceedings it will be determined to what extent Google abuses its market strength in extorting a free-of-charge license from press publishers.
Whom exactly does VG Media represent in the judicial process?
VG Media represents more than 200 digital press products in the proceedings aimed at enforcing the ancillary law for press publishers before the Landgericht Berlin (district court). VG Media thus represents a large proportion of German press publishers as well as the digital domains of some television and radio broadcasters.