In an oral hearing at the district court of Berlin on Tuesday, the presiding judge held that the German ancillary copyright (ac) had to be notified by the German Government. If the court clings to this assessment the German ac could be declared ineffective, null and void.

It’s all about money

Yesterday’s hearing was part of a lawsuit between the German collecting society VG Media and Google. The VG media manages the ac for a number of German publishers. The VG Media claims, inter alia, remuneration and damages for the use of snippets and thumbnails in Google News and Google Search. Almost all decisive aspects regarding these claims are disputed. The core question is, whether the snippets (and thumbnails) that Google’s search services display can be considered as “individual words or the smallest of text excerpts”. In this case their use would be exempted according to Art. 87f German Copyright Act (UrhG), hence would not be subject to licensing or remuneration obligations.

No valid law no claims

Now it seems that all these details might turn out irrelevant. The district court suggested that the German government had to notify the ancillary copyright prior to its enactment according to the EU directive 98/48/EC. To put it simply, the directive obligates the member states to notify national legislation that relates to technical regulation for Information Society services. If a national government fails to notify, the law is not valid and cannot be executed or enforced.

Notification duty for the ac controversial

Whether or not the German ac was actually subject to the notification duty under directive 98/48/EC is disputed. However, the Berlin district court deems the obligation applicable. If it clings to this opinion, it could a) reject the legal action of the VG Media for this reason alone or b) refer the question to the European Court of Justice (ECJ). In the latter case the German proceedings would be suspended until the ECJ decides. This could take years.

The Berlin court announced its verdict for May 9, 2017. Then we will see if the publishers suffer another historic defeat on their quest to enforce the ancillary copyright in Germany. 

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