A German provision prohibiting internet search engines from using newspaper or magazine snippets without the publisher’s authorisation must be disregarded in the absence of its prior notification to the Commission


VG Media, a German copyright management organisation, brought an action for damages against
Google before the Landgericht Berlin (Regional Court, Berlin, Germany) claiming that Google
infringed rights related to copyright of some of its members, namely publishers of newspapers or
magazines. It claims that since 1 August 2013 Google has used, on its search engine and its
automated news site ‘Google News’, newspaper or magazine snippets (short excerpts or short
summaries of newspaper or magazine articles which may be accompanied by images) produced
by VG Media’s members without paying a fee in return.

The Landgericht Berlin expresses doubts as to whether VG Media may rely vis-à-vis Google on
the relevant German provision which took effect on 1 August 2013 and which aims to
protect publishers of newspapers or magazines.
That provision prohibits only commercial operators of search engines (and commercial service
providers that similarly publish content) from making newspapers or magazines or parts
thereof, excluding individual words and very short text excerpts, available to the public.
The Landgericht Berlin seeks to ascertain whether such a provision constitutes a ‘technical
regulation’ within the meaning of Directive 98/34 concerning technical standards and
regulations, 1 which should, accordingly, have been notified to the Commission in order for
it to be enforceable against individuals.
In today’s judgment, the Court of Justice answers in the affirmative.
A provision such as that at issue constitutes a rule on information society services and, therefore, a
‘technical regulation’.
That provision specifically targets the services in question since it appears that its main aim and
object was to protect publishers of newspapers and magazines against copyright infringements by
online search engines. In that context, protection appears to have been considered necessary only
for systematic infringements of works of online publishers by information society service providers.

In so far as such a rule is specifically aimed at information society services, the draft
technical regulation must be subject to prior notification to the Commission. Failing that, an
individual may rely on it being disapplied.

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