German publisher copyright law ruled unenforceable

Out-Law News | 13 Sep 2019 | 11:13 am | 2 min. read

Copyright laws in Germany that restrict the ability of internet search engines to reproduce content produced by publishers have been ruled unenforceable by the EU's highest court.

The Court of Justice of the EU (CJEU) said that the restrictions introduced into German law in 2013 constitute a 'technical regulation' that should have been notified to the European Commission before they took effect. Because there was no such notification the specific provisions in German law are to be disregarded, the CJEU said.

Under the German legislation, producers of news materials were given a general exclusive right to control how their materials are made publicly available, in whole or in part, for commercial purposes. Commercial operators of search engines or commercial news aggregators were generally prohibited from providing public access to the publishers' material without authorisation from the publishers. However, some qualifications were built into the legislation.

News publishers' rights to exert control were limited to one year after publication. The law also permitted the search engines and aggregators to use very small snippets of the publishers' content without authorisation at any time following its original publication.

The case before the CJEU did not concern a dispute relating to the substance of the German legislation. The Regional Court in Berlin instead asked it to determine whether Germany was obliged to give prior notification of its 2013 change to copyright laws to the European Commission.

At issue was compliance with EU laws which were repealed in 2015. Because those laws applied at the time Germany introduced the copyright reforms, the CJEU considered whether Germany had complied with their requirements.

The EU law required EU member states to immediately communicate draft technical regulations relevant to information society services to the European Commission, subject to some listed exceptions.

Central to this case was the question of whether the 2013 copyright law constituted a 'technical regulation' for the purposes of the EU law. The CJEU said that it did. This meant Germany was required to notify its proposed legislation to the Commission. Because Germany failed to do so, the CJEU held that the legislation does not apply and that non-compliance with the provisions cannot be enforced.

Frankfurt-based copyright law expert Dr. Nils Rauer of Pinsent Masons, the law firm behind Out-Law, said: "The judgment does not come as a surprise. The core aim of the new law, as enacted in 2013, was perfectly clear. It was also clear that it intended to create regulations relating to information society services. Therefore, it was an omission of the legislator that could only end in a court decision such as the one today."

"Today’s judgment is not about the subject-matter itself. It is about a mistake in the law-making process. A similar neighbouring right for publishers to the one at issue in this case has been written into new EU copyright laws which were finalised earlier this year. It remains to be seen how closely the now invalidated German copyright laws are replicated in the country and in other EU member states when the new EU copyright laws are implemented into domestic legislation," he said.

Under the Digital Single Market Copyright Directive, information society service providers, like search engines and news aggregators, will be required to make a 'fair and proportionate' payment in remuneration for the digital use of press publications subject to the limitations set out in the legislation. Those limitations include a restriction on publishers' rights to control the use of 'snippets' of their content by the providers without their permission where the snippet constitutes a "very short extract" or "individual words".