With decision of 8 May 2017, the regional Court of Berlin referred to questions for preliminary ruling to the Court of Justice of the European Union (CJEU). The court is concerned whether the rules on the press publishers’ neighbouring right – as implemented into German copyright law in 2013 – were properly enacted back then. Specifically, the judges wish to receive some indication and guidance on whether the German legislator should have notified the European Commission in accordance with the Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services when enacting Secs. 87f to 87h of the German Copyright Act. This did not happen. Accordingly, the question now raised by the court is truly crucial as failure to notify the German bill leads to the domestic statute being deemed inapplicable.
The original case was brought before court by the collecting society VG Media and the defendant is Google. As part of Google’s services, short text passages, so-called “snippets“, are displayed as part of the individual search result. Those snippets sometimes happen to be taken from digital press publications. Usually, there is no explicit authorisation being obtained from the respective press publisher. Rather, Google acts on the assumption that such snippets may be displayed without any particular license. VG Media takes a different position in this respect and thus took Google to court.
The question the Berlin court is concerned with is truly fundamental as it concerns whether the press publishers’ neighbouring right as enacted in Germany is a valid and applicable law. Only if this is the case, may courts throughout the country continue to apply Secs. 87f to 87h of the German Copyright Act in future matters. The Directive 98/34/EC is very clear in this respect. National laws that require notification must be duly notified to the European Commission. If a Member State fails to do so, the respective domestic law may not be applied (see CJEU, decision of 30 April 1996, C-194-94 – CIA Security International/Signalson).
Against this background, the judges in Berlin ask the question whether Secs. 87f to 87h of the German Copyright Act fall within the scope of the aforementioned directive. In essence, they wish to know whether those sections are to be deemed a “technical regulation” within the meaning of Articles 8 (1) and 1 No. 11 of the Directive 98/34/EC. If the answer to this question is yes, the German bill should have been notified back in 2013.
Apparently, the Berlin court has already formed quite a clear view on how this question ought to be answered. For the time being, the judges are of the opinion that the sections at issue do form a technical regulation within the meaning of the Directive 98/34/EC. The core reason referred to is the wording of Sec. 87g (4) of the German Copyright Act. This provision sets out the requirement to obtain the right holder’s authorisation only if a commercial operator of search engines or a commercial operator of services which edit the content make a press publication or parts thereof available to the public. Because of this dedicated focus on search engines the judges deem the provision a “technical regulation” forming a requirement of a general nature relating to the taking-up and pursuit of an Information Society service as defined in Article 1 Nos. 2, 5 and 11 of the Directive 98/34/EC.
Accordingly, the German judges take the position that they are prevented from applying the rules on press publishers’ neighbouring rights as set out in the German Copyright Act.
From the way the Regional Court of Berlin has phrased its questions, it becomes quite apparent that the request for the CJEU’s preliminary ruling shall serve the purpose of backing the judges’ already formed opinion. Of course, the court is aware of the far-reaching consequences a decision not to apply Secs. 87f to 87h of the German Copyright Act would have. The enacting of a press publisher’s neighbouring right triggered quite some discussions back in 2013 which to some extent are still ongoing. This is true with regard to the (jeopardized) general need of such right as well as regarding the specific shape it has been given by the legislator.
The overall discussion has gained new impetus from the latest proposal of the new Copyright directive which the European Commission published on 14 September 2016. The Commission aims for a pan-European neighbouring right for press publishers. However, lately the European Parliament has positioned itself against such right. The ongoing trilogue will eventually provide us with the answer whether such right will come or not.
As for the questions the Regional Court of Berlin has placed with the CJEU, the arguments clearly speak for the German provisions on the press publisher’s neighbouring right indeed falling within the scope of Article 8 (2) of the Directive 98/34/EC. In consequence, the German legislator should have notified the Commission, and its omission to do so requires the court to leave aside Secs. 87f to 87h of the German Copyright Act when deciding the case currently before it.