Advocate General Hogan has given an opinion in VG Media v Google LLC C-299/17.
Advocate General Hogan has issued an opinion in VG Media v Google LLC C-299/17, that a German copyright law restricting commercial search engine and service providers from using certain press material without permission required notification under the Technical Standards Directive (98/34/EC).
As a result, the Advocate General said that the Court of Justice of the European Union should rule that German rules introduced in 2013 which prohibit search engines from providing excerpts of press products without prior authorisation by the publisher must not be applied. The rules should have been notified to the European Commission as they constituted a technical regulation specifically aimed at a particular information society service, namely, the provision of press products through the use of internet search engines.
In 2013, Germany introduced a right related to copyright for press publishers, without notifying the draft legislation to the Commission. The German legal provisions provide that commercial operators of an internet search engine (as well as commercial service providers which edit content) are not entitled without appropriate authorisation to provide excerpts ? other than individual words or very short text excerpts ? of certain text, images and video content provided by press publishers.
VG Media is a German collective management organisation managing copyright and rights related to copyright on behalf, among others, of press publishers which brought an action for damages on behalf of its members for Google’s use of images, videos etc produced by VG Media’s members without a fee being paid.
The case was eventually referred to the CJEU and the referring court asked whether the new German rules could be considered as a technical regulation specifically aimed at a particular information society service and therefore one that required notification to the Commission according to the Directive.
Advocate General Gerard Hogan considered that the German legal provisions in question amount to a technical regulation within the meaning of the Directive. The Advocate General was further of the opinion that the German rules were specifically aimed at information society services. Their principal aim and object was to address the impact of internet search engines given that media content is increasingly read and accessed on-line and to provide for a special copyright rule in respect of the provision of online services in relation to press products by the operators of such search engines.
Despite the changes in news provision and the fact that news is now generally consumed online rather than, for example, in newspapers, the Advocate General said that member states may not by-pass the notification requirements of the Directive. Nor does the fact that notification of such a legislative proposal is required by the Directive in itself mean that the draft legislation is necessarily defective or objectionable from the standpoint of the internal market. Rather, what the Directive seeks to achieve is that the European Commission (and, by extension, the other Member States) becomes aware of the proposal and at an early stage consider its possible implications for the operation of the internal market.
Consequently, the Advocate General proposed that the Court should rule that such national provisions constitute rules specifically aimed at information society services. Further, they constitute a technical regulation, subject to the notification obligation under the Directive.
In conclusion, in the absence of notification of the national provisions to the European Commission, the German copyright rules cannot be applied by the German courts.
Judgment will be given at a later date, the CJEU follows the Advocate General’s opinion in around 80% of cases.
