Notification failed: ECJ declares that German ancillary copyright is inadmissible

The German ancillary copyright for press publishers is inadmissible. According to a judgment of the European Court of Justice (ECJ) (PDF), the then black-yellow federal government should have submitted the law of the European Commission adopted on 1 March 2013 and had it notified. Since this has been neglected, the provisions of the Law should not be applied by the German courts (Case C-299/17). However, the judgment has no effect on the European ancillary copyright law adopted in March 2019.

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  1. Impetus Unternehmensberatung GmbH, Eschborn
  2. Federal Ministry of Finance, Berlin

In May 2017, the district court of Berlin submitted the question of the notification obligation to the ECJ for clarification. Background is a dispute between the Verwertungsgesellschaft (VG) Media and the search engine giant Google on license payments for the use of media content.

Verdict confirms opinion of the district court

In the opinion of the district court, the Federal Government should have registered the amendment of the Copyright Act with the EU Commission in the spring of 2013. However, the district court of Berlin could not make this decision itself and thus declare the law inapplicable, so that it had to submit the legal questions to the ECJ in a so-called preliminary ruling.

The court follows the opinion of Advocate General Gerard Hogan. In his report of December 2018, he also argued that the then black-yellow federal government should have submitted its plans to the European Commission and had the law notified. Accordingly, corresponded "the new German legislation in question concerning a copyright related to copyright for press publishers of a technical regulation within the meaning of Directive 98/34", They should have been notified.

State liability is not excluded

The German publishers, which try to enforce the ancillary copyright with the help of VG Media and numerous lawsuits, threatens the complete loss of their legal and attorney's fees. These are likely to total around ten million euros. In the 2017 annual report of VG Media it says: "In the worst case scenario, the expenses of the past would be fruitless. (…) VG Media has informed the supervisory board and rights holders about the necessity of taking precautions in case of such a scenario." VG Media also supports its right holders to prepare for such a case. "

An opinion of the Bundestag (PDFHowever, does not exclude a state liability in the event that "Investments prove to be a bad investment due to the breach of the notification obligation",

Dispute over license claims

The civil action before the district court had become necessary because the arbitration between the VG Media and Google before the German Patent and Trademark Office (DPMA) in October 2015 had failed. The local arbitration board had rejected the demand by the VG Media tariff of six percent of Google's total revenue with the presentation of media as too high. According to the Arbitration Board, search engines could display up to seven words free of charge. Both parties had filed opposition to the decision.

In addition to the Berlin Regional Court, the Administrative Court of Munich and the Berlin Court of Appeal also deal with the ancillary copyright. A constitutional lawsuit by Yahoo, however, was rejected. The Administrative Court of Munich had stayed the proceedings in the dispute over the validity of free licenses in order to await the request for a preliminary ruling from the ECJ. The Federal Government also wants to await the outcome of the procedure in order to conclude an evaluation of German ancillary copyright.