Google Case

Berlin Court May Upend German Copyright Law

  • Why it matters

    Why it matters

    If a Berlin court throws out Germany’s 2013 ancillary copyright law, it will force lawmakers to go back to the drawing board and pass a new law to compel payment from search engines such as Google.

  • Facts

    Facts

    • Germany’s 2013 Ancillary Copyright Law requires search engines like Google to pay publishers and continent originators for the news and information snippets it lists in online searches.
    • Google has not made payments since the law went into effect, saying the German statute is not in conformance with European law.
    • On Tuesday, a Berlin court asked lawyers for clarity on the issue, and could use the technicality to throw out a publisher’s lawsuit targeting Google when it issues its verdict on May 9.
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A Berlin court is looking into whether Germany improperly adopted a 2013 law seeking to require Google to pay publishers for listing snippets of their news in web searches. Source: DPA

A Berlin court this week questioned whether Germany had properly adopted a 2013 online copyright law designed to compel Google to pay publishers for summarizing their news contents in web searches.

If the court ultimately rules the 2013 Ancillary Copyright Law was invalid, it would be a setback to local publishers.

The case in Berlin District Court is the first test of the law adopted four years ago.

German publishers, including Handelsblatt Publishing, the owner of Handelsblatt Global, want Google and other search engines to reimburse them for summarizing snippets of their news content in web searches.

Under the new law, Google was supposed to start paying for this privilege on August 1, 2013. But Google has refused, saying the German law is not valid. The case was brought before the Berlin court after VG Media, an association of privately owned publishers and broadcasters including Handelsblatt and Axel Springer, publisher of Bild newspaper, sued Google.

Google, the world’s largest search engine and the dominant engine in Germany, argues it is only printing small snippets of news for indexing purposes, and its search service benefits publishers by making their contents available to a wider global audience.

In 2013, Germany did not submit the copyright law for notification, citing a Justice Ministry argument that the law’s scope was so limited, it didn’t fall under the E.U.’s notification requirement.

In an oral hearing on Tuesday, the Berlin court focused on a technicality that could stop the publishers’ lawsuit in its tracks: Whether the 2013 statute after being adopted by lawmakers in Berlin had been submitted to European Commission authorities in Brussels under a legal process called “notification.’’

While typically a formality, notification reviews of national laws by Brussels can take up to two years or more. In 2013, Germany did not submit the copyright law for notification, citing a Justice Ministry argument that the law’s scope was so limited, it didn’t fall under the E.U.’s notification requirement.

During the oral hearing this week, the judges asked for clarity on the point before issuing their ruling on May 9.

It was unclear whether the judges were prepared to overturn the law on the technicality.

A group calling itself Initiative Against an Ancillary Copyright, a group of internet businesses that opposes the law, said the court’s request for information signaled it was preparing to invalidate the statute, which would force German lawmakers to go back and adopt a new measure.

But a representative for publishers said the court’s request was more nuanced, and suggested the judges were prepared to address the main issues in the suit, such as how much text Google can legally print without triggering the payments.

Jan Hegemann, a lawyer representing VG Media from the firm Raue LLP, asked the court to refer the notification question to the European Court of Justice, to avoid unnecessary appeals and delays in the German legal system.

“We, like the German government, do not see a notification requirement in this case,‘‘ Mr. Hegemann argued. “The state court is still undecided on this question.’’

 

Kevin O’Brien is the Editor-in-Chief of Handelsblatt Global. To reach him: obrien@handelsblatt.com

 

 

 

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