Google versus VG Media

To what extent do European regulations influence the German legal situation? In the legal dispute between Google and VG Media, a European directive prevents the enforcement of a German law because the EU Commission was not informed in time.

Google as a search engine operator offers online its automated news page Google News, on which news from a limited circle of sources are summarized. As a preview, short summaries, the so-called snippets, are displayed for each message. These snippets may, for example, correspond to the first lines of the underlying article. Furthermore, Google is considered to be a commercial provider, among other things due to the placement of advertisements.

The VG Media (exactly: VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH) is a German collecting society which commercializes the copyrights of various television, radio and digital publishers. The latter assign the rights and claims of their press products to VG Media for the duration of the contract.

According to the lawsuit brought before the Berlin Regional Court, Google has been using text excerpts, pictures and videos of VG Media members free of charge since August 1, 2013.

On the one hand, the lawsuit in Germany is based on the national Leistungsschutzrecht (ancillary copyright law) that came into force in 2013. This law is supposed to protect press products and their authors. It exclusively prohibits commercial search engine operators and commercial service providers from making press products, or parts thereof, that go beyond individual words and the smallest text excerpts, available to the public.

On the other hand, there are European regulations. In particular, Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 6/22/1998 on an information procedure in the field of technical standards and regulations on Information Society services, as amended on 7/20/1998.

According to the European Court of Justice (ECJ), this directive must be interpreted as meaning that the present national Leistungsschutzrecht (ancillary copyright law) constitutes a technical regulation within the meaning of the directive (ECJ, 12.09.2019 - C-299/17). The draft of such a technical regulation must be notified in advance to the European Commission in accordance with the directive, which was not done in this case.

Since the EU Commission was not informed of the national draft law in good time, but notification would have been obligatory in the opinion of the ECJ case-law, the national law is therefore not applicable.

The Berlin Regional Court must now make a final decision on the specific case.

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