Implementing the Press Publisher’s Right: the German and French experience
In April 2019, press publishers were granted a new controversial right under the Digital Single Market Directive (Article 15). How have Germany and France dealt with this new right?
Article 15 grants press publishers the exclusive rights to reproduce and make their online press publications available to the public. It obliges news aggregators to conclude agreements with press publishers in order to make the news available on their platforms. This right is meant to ensure that reporters gain some remuneration from their online content.
Even though the legislator's intention is to protect publishers, the new law could also decrease the availability of press if aggregators circumvent the system. In fact, they could decide to only publish short extracts that are not covered by the new right or refuse altogether to publish any content if the latter is not provided for free.
France is a good example of this, being the first Member State to implement Article 15 in its Code Google News tried to benefit from its monopoly position as a leader of communication and circumvent the closure of licensing agreements with French publishers. Will France be able to protect their journalists or will Google be able to impose their own exceptions?
Google v France - Publisher’s Victory
Google refused to publish online articles, unless it is free of charge. As a response, the representatives of the very large number of news publishers in France issued a complaint to the Autorité de la concurrence. This authority found that serious and immediate harm has been caused to the press sector as a result of Google's conduct and granted a request for interim measures forcing Google to enter into negotiations in good faith with the publishers. The authority established that Google’s practices could indeed be regarded as anti-competitive, as the tech giant holds 90% of the relevant market share and such a practice could therefore constitute a huge loss for press publishers.
- Avoiding any form of negotiation and remuneration for the reuse and display of content protected under French Law,
- Discriminating economic stakeholders by treating them identically in different situations,
- Forcing news agencies to grant free licences to systematically impose a principle of non-remuneration for the display of protected content on its services, without any possibility of negotiation,
- Refusing to communicate the information needed to determine the remuneration.
As a result, France managed to comply with Article 15. Conversely, a similar case in Germany led to a completely different outcome.
Google v Germany - A controversial decision
In Germany, Google was able to circumvent the press publisher’s right following a preliminary ruling by the ECJ. Here, Google distributed news snippets originally published online by VG Media, a German group of publishers. The publishers claimed that these pieces of work were protected under Article 15 of the Directive, thus entitling the publishers to restitution, i.e. a share of revenues earned. Google, on the other hand, refused to comply with the rights granted to press publishers. The ECJ ruled that Google, in this case, did not have to comply with the German legislation, which prohibits non-authorised distribution of excerpts. The reason why the Court did not apply the press publishers’ right was because the European Commission had not been notified thereof by the German legislator. This, however, is an obligation under EU law. This non-application of the press publishers’ right, however, is only circumvented until the Commission has been notified of the national rule. After that, the right will be applied to all future cases of this nature.
What to take away?
It is important to note that the intention of the EU legislator in forming this right was for Article 15 to protect ‘old fashioned’ type press creators. Although the Directive does leave some scope of interpretation to the Member States, it only leaves limited possibilities of setting aside Article 15 by using the existing restrictions (for instance in hyperlinking) as loopholes.
| Written by European Law bachelor students Sophia Cassels, Chelsea Borboux & Julia Makulec
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