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: that provision constitutes a rule on information society services and, therefore, a ‘technical regulation’ the draft of which is subject to prior notification to the Commission.
From the press release: “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.
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.”
C-299/17 - ECLI:EU:C:2019:716