German rules prohibiting Google-type search engines from providing press products without the publisher's prior authorisation should not be applied, because they should have been notified to the European Commission, said Advocate General Gerard Hogan in a statement delivered at the EU Court of Justice on Thursday 13 December (Case C-299/17).
In 2013, Germany introduced a right similar to copyright for newspaper publishers, but without notifying the draft legislation to the Commission. Under these rules, commercial operators of an internet search engine, as well as commercial service providers which edit content, are not entitled - unless expressly authorised - to provide excerpts (other than individual words or very short text excerpts) of certain texts, images and video content provided by press publishers.
The German collective copyright management organisation VG Media brought an action for damages against Google before the Berlin Regional Court concerning the US giant's use of text excerpts, images and videos from press and media content without paying any remuneration.
The German court is asking the Court whether the German rules constitute a technical regulation specifically aimed at a particular information society service and which must be notified to the European Commission in order to be applicable, in accordance with Directive (98/34), which lays out an information procedure in the field of technical standards and regulations.
In his Opinion, the Advocate General replies in the affirmative. These provisions cannot be regarded as a mere condition for the exercise of a professional activity insofar as they make the provision of the service subject either to a form of prohibition or to a pecuniary request at the initiative of the press publisher.
The Advocate General also considers that the German rules in question are specifically aimed at information society services. Their primary aim is to respond to the influence of search engines on the internet, as media content is increasingly consulted online, and to provide a special copyright rule for the provision by search engines of online services in relation to press products.
The Advocate General admits that the German rules aim to promote media diversity and press freedom, the very essence of democracy, by responding to changes in consumer habits.
But a Member State is not “entitled to by-pass the notification requirements of the Directive," emphasises Mr Hogan. And, he adds, the obligation to notify a draft law does not in itself mean that the draft law is necessarily inconsistent with EU law.
Rather, the objective of the Directive is for the Commission to become aware of the draft and to examine at an early stage its possible consequences for the functioning of the internal market. (Original version in French by Mathieu Bion)