In the absence of prior notification to the European Commission, in accordance with the requirements of Directive 98/34/EC, the German law that enshrined a neighbouring right for newspaper publishers, from 2013, is declared inapplicable by the Court of Justice of the European Union (CJEU 12 sept. 2019, VG Média c/ Google LLC, case C-299/17)
The creation of a specific neighbouring right for newspaper publishers for the use of their publications by online public communication services took shape with the German law that came into force on August 1st, 2013.
Thus, well before France, the first country to have transposed Article 15 of Directive (EU) 2019/790 of 17 April 2019 (Law n° 2019-775 of 24 July 2019, OJ 26 July), Germany granted the press publisher “the exclusive right to make available to the public, in whole or in part, the product of the press for commercial purposes, except in the case of isolated words or very short extracts of text”. This provision is lawful, provided that “it is not made by commercial search engine providers or commercial service providers who publish content in a similar way“.
A dispute arose between Google and VG Media, a German copyright management company, which claimed that the American giant had violated the neighbouring rights of several of its members, press publishers. It argued that Google used « snippets » (short extracts or summaries of articles, as the case may be, accompanied by images) on its search engine and on its Google News website to display search results and news summaries, without having paid any remuneration in return.
The Berlin Court hearing the claim for compensation had to ascertain whether the provisions of the German law should have been communicated to the European Commission at the draft stage, pursuant to Article 8 of Directive 98/34/EC of 22 June 1998 (Text providing for an information procedure in the area of technical standards and regulations and rules on information society services, applicable in this case.)
The question put to the CJEU is important because, in accordance with the Court’s case-law, provisions adopted in breach of the obligation to notify are inapplicable and cannot, therefore, be invoked against individuals (CJEU 27 Oct. 2016, James Elliott Construction, Case C-613/14). Insofar as the legislation at issue is specifically aimed at information society services, the Court found that the draft of such a technical regulation should therefore have been notified in advance to the Commission. Otherwise, the rule is declared inapplicable and cannot be invoked in a dispute between individuals.
However, this decision is a relative victory for Google and other users of online press content, as Germany is required to transpose Directive (EU) 2019/790 by 7 June 2021.
(GB – Avocat Paris)