BREAKING: CJEU confirms that German press publishers’ right is unenforceable due to missed notification to the European Commission

Readers with an interest in related rights, especially those in favour of press publishers, will know not only that there is now an EU-wide right for press publishers (Article 15 of the DSM Directive), but will also remember that its national predecessor – ie the German related right in favour of press publishers – has been challenged in courts and a referral was made to the Court of Justice of the European Union (CJEU) regarding its actual enforceability.

Back in 2013, Germany was the first country in Europe to introduce a related right in favour of press publishers. Sections 87f-h of the German Copyright Act (UrhG) provide for a (waivable) right of press publishers to exploit their content commercially for one year, thus preventing third parties from displaying excerpts of press content (other than single words and very short ones) without paying a fee.

The German press publishers’ right is waivable, and apparently a significant number of publishers in Germany have decided to waive it in favour of indexation by news aggregation services like Google News (which became opt-in, rather than opt-out, in the immediate aftermath of the amendment to the UrhG).

As The IPKat reported [here and here], litigation has ensued in Germany over the actual enforceability of the right. In the context of litigation between the collecting society responsible to collect royalties in favour of publishers (VG Media) and Google, the latter has been arguing that the German right would not be enforceable because the German Government failed to notify the EU Commission of this initiative, as is instead required for ‘technical regulation’ under Article 8(1) of Directive 98/34. Apparently the German Government failed to notify the Commission because of impending elections in Germany.

As early as 2015, Bo Vesterdorf (former president of what is now the General Court) argued that both the German and Spanish initiatives in favour of press publishers would be unenforceable due to their missed notification to the EU Commission. 

The court before which these proceedings are pending, the Landgericht Berlin, decided in 2017 to make a referral to the Court of Justice of the European Union (CJEU) and seek guidance on the very point of missed notification: VG Media, C-299/17.

Last December, Advocate General (AG) Hogan issued his Opinion [Katpost here]. He advised the CJEU to rule that – indeed – the German Government should have notified the Commission. Failure to comply with this obligation means that the right would be unenforceable.

The CJEU has just issued its judgment (currently only available in French and German), and ruled that, indeed, the German press publishers’ right is unenforceable due to the fact that German Government failed to notify the Commission.

A more detailed analysis will follow soon.