Google case raises doubts about German news copyright law

A Berlin court has asked the Court of Justice of the European Union to intervene in a dispute over news publishers' demands for payment from Google for its use of snippets of their stories

German news publishers suing Google for copyright dues under a 2013 law may get more than they bargained for, with implications for readers and newspapers throughout the EU.

Rather than rule in their favor, the Berlin court hearing their case has raised doubts about the validity of the very law they sought to enforce: It has asked the Court of Justice of the European Union (CJEU) to rule on whether the German government should have notified the European Commission of its introduction.

Such notifications are required when EU member states pass laws that may create barriers to the free provision of internet and digital services.

At stake is how much Google must pay publishers under Germany's 2013 Ancillary Copyright for Press Publishers law to displays snippets of their news stories in search results on its Google News site -- and perhaps also whether internet users across Europe will continue to have free access to news aggregators such as Google's.

VG Media, the German publishers' collective that brought the lawsuit against Google, welcomed the Berlin court's statement that its claim against Google was at least partly justified -- but said it agreed with the German government that notification of the law to the Commission was not necessary.

For its part, Google wants to continue working with German publishers, a spokeswoman said. "Today's decision in Berlin highlights that there are still many contradictions and unanswered questions in the law of ancillary copyright for publishers. We've said many times that we don't want to fight legal battles with publishers. We'd much rather work with them to drive traffic to their websites and apps, promote their brands, and support online journalism--and that’s what we’ll continue to do," she said.

Most countries do not require news aggregators such as Google to pay a licensing fee when displaying a "snippet," a short excerpt or summary of a news story that links back to the news publisher's site.

Newspapers, however, have claimed that such snippets deprived them of advertising revenue by satisfying readers' curiosity without them needing to click through to the originating website, and in Germany and Spain succeeded in persuading governments to legislate.

A draft of a new EU copyright law published by the European Commission last September suggested that other European countries should follow in their footsteps in allowing charges for news snippets. Given the success of the laws in Spain and Germany, where readership fell when aggregators stopped publishing snippets, that could spell bad news for newspaper publishers and readers alike. A ruling from the CJEU in the German case could sway thinking about the draft, which is still under discussion.

In Spain, a December 2014 law obliged publishers to demand a license fee for news snippets: They could not waive it. In protest, Google closed down its Spanish news aggregation portal on Jan. 1, 2015, saying that because it showed no advertising on the site, it did not make any money. A month later news site El Confidencial Digital said Spanish websites had lost between 2 percent and 12 percent of their traffic, citing sources at the Association of Spanish Newspaper Publishers (AEDE). AEDE is still negotiating the fee with the country's remaining news aggregators. 

Germany's 2013 law, in contrast, allowed publishers to choose whether to demand a license fee for snippets of their news, and to negotiate the amount directly with aggregators. Google's initial reaction was to remove sites asking for a license fee from its search results, with the resulting fall in traffic prompting some of them to reconsider their demands.

In Belgium, news publishers filed suit to extract a license fee from Google under existing copyright laws, but ended their legal action by mutual agreement in 2012.

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Peter Sayer

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