Google search
(LUXEMBOURG) – A German provision stopping Google search from using newspaper snippets without publisher authorisation must be disregarded as it was not notified to the Commission, the EU Court ruled Thursday.
According to the ruling, which also applies to other Internet search engines, the German provision constitutes a rule on information society services and, therefore, a ‘technical regulation’, and as such the draft is subject to prior notification to the Commission.
The case concerned German copyright management organisation VG Media which brought an action for damages against Google before the Berlin regional court claiming Google infringed rights related to copyright of some of its members, namely publishers of newspapers or magazines.
It suggested Google had since 2013 used on its search engine and its automated news site Google News, newspaper or magazine snippets (short excerpts or short summaries of newspaper or magazine articles which may be accompanied by images) produced by VG Medias members without paying a fee in return.
The Berlin court expressed doubts as to whether VG Media may rely vis-à-vis Google on the relevant German provision which took effect on 1 August 2013 and which aims to protect publishers of newspapers or magazines.
That provision prohibits only commercial operators of search engines (and commercial service providers that similarly publish content) from making newspapers or magazines or parts thereof, excluding individual words and very short text excerpts, available to the public.
The Landgericht Berlin sought to ascertain whether such a provision constitutes a technical regulation within the meaning of Directive 98/34 concerning technical standards and regulations, which should, accordingly, have been notified to the Commission in order for it to be enforceable against individuals.
In its judgment, the Court of Justice answers in the affirmative.
A provision such as that at issue constitutes a rule on information society services and, therefore, a technical regulation.
That provision specifically targets the services in question since it appears that its main aim and object was to protect publishers of newspapers and magazines against copyright infringements by online search engines. In that context, protection appears to have been considered necessary only for systematic infringements of works of online publishers by information society service providers.
In so far as such a rule is specifically aimed at information society services, the draft technical regulation must be subject to prior notification to the Commission. Failing that, an individual may rely on it being disapplied.
