Advocate General considers German ancillary copyright law invalid  20/12/2018 by Tom Hirche

The many years of discussion and numerous court proceedings concerning the German ancillary copyright law for press publishers are likely to come to an abrupt end shortly. In his opinion, the Advocate General at the European Court of Justice declared the relevant provisions inapplicable.

Background

The collecting society VG Media, to which numerous publishers have transferred their new rights, has been in dispute with Google for some time now. The question is whether the Internet company has to pay money for presenting links to publisher websites in its search engine and news portal (let this thought sink in for a second).

This absurdity was to be achieved by the ancillary copyright law for press publishers introduced in 2013. So far, however, not a single Euro has gone to the publishers. Instead, millions have been spent on legal advice. This was (and is) necessary, among other things, for proceedings pending before the Berlin Regional Court. The competent chamber has already indicated that it considers the (payment) claim asserted by VG Media to be at least partially justified.

Ignorance of European law is not a bliss

However, before a judgment can be given, a crucial preliminary question must be clarified before the European Court of Justice: Has the ancillary copyright law for press publishers been effectively introduced or has the legislator disregarded the requirements of European law?

It all revolves around Directive 98/34/EC (now replaced by Directive (EU) 2015/1535). Article 8(1) of the Directive provides for a special procedure if an EU Member State intends to enact a law specifically targeting information society services. In this case, the EU Commission must be informed of the project already during the drafting stage (so-called notification procedure). Subsequently, in addition to the Commission, the other member states have the opportunity to submit their own comments within the following months, while the national legislative procedure must be suspended. The comments received must be taken into account by the legislator.

If this procedure is not followed in the case of a law subject to notification, there is a violation of EU law which leads to the inapplicability of the enacted regulation.

Ancillary copyright law legally non-existent

In his official opinion, Advocate General Gerard Hogan concludes that the law establishing the new publishers' right (Seventh Act Amending the Copyright Act) fulfils all the requirements of the obligation to notify. However, a notification procedure was never carried out. Consequently, his recommendation to the European Court of Justice is to declare the regulation inapplicable. This would also apply retroactively.

One could now dismiss the Advocate General's opinion as one of many opinions. But be informed that other experts, such as the legal expert Prof. Thomas Hoeren from the University of Münster, have already pointed out the necessity of a notification procedure. And you should also know that the judges of the European Court of Justice usually follow the opinions of their Advocates General.

The German legislator is therefore facing the ultimate embarrassment. That is because internal ministry e-mails show that it was informed of the requirements of European law at an early stage. However, driven by the concern that it would no longer be possible to complete the legislative process before the end of the legislative period, the legislator ignored it with both eyes wide open.

So when the Court of Justice buries the ancillary copyright law prospectively at the beginning of next year, the last prediction will be confirmed and one of the worst laws will come to an inglorious end. Unfortunately, this is only a small consolation given the damage it has caused so far.
 

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