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Bundeskartellamt takes decision in ancillary copyright dispute

Date of issue: 09.09.2015

In the dispute between the copyright collecting society VG Media and Google, the Bundeskartellamt has decided not to open formal proceedings against Google regarding its conduct in connection with the introduction of an ancillary copyright for publishers.

Andreas Mundt, President of the Bundeskartellamt: "This dispute is not so much about competition law but about the scope of the ancillary copyright. This is a question which is mainly for the civil courts to answer. In the case at hand the limits of what is still permissible under competition law have not been overstepped. Due to Google's market position an objective justification would be needed for any changes made to the results list that go beyond the pure relevance for the search query. Such an objective justification existed, however, in the case at hand. We made it clear, on the other hand, that a complete delisting of individual publisher websites from Google’s results could be an infringement of competition law."

The Bundeskartellamt's investigations followed a complaint by VG Media about Google's conduct in connection with the introduction of the ancillary copyright for press publishers on 1 August 2013. The ancillary copyright allows publishers to prohibit search engines and similar services from using their articles or other work products, with the exception of individual words or tiny text fragments (snippets). In the summer of 2014, VG Media took civil action against Google. As a consequence, Google announced that in future it would show search results relating to the websites of press publishers that were represented by VG Media in the legal dispute only in a reduced form if the publishers did not agree to a free-of-charge use of their work. Google justified this by claiming that otherwise it ran the risk of being sued for breaching the ancillary copyright.

The Bundeskartellamt considers this to be an objective justification for Google's conduct. Even a dominant company cannot be compelled under competition law to take on a considerable risk of damages where the legal situation is unclear. The Bundeskartellamt has therefore decided not to initiate formal proceedings against Google for possibly discriminating against VG Media.

During the investigations in this matter the Bundeskartellamt maintained close contact with the European Commission.

Andreas Mundt: "There is no overlap between this rather specific case and the EU Commission's current proceeding against Google. I very much support the course taken by Commissioner Vestager in this proceeding."

In 2010 several national competition authorities (including the Bundeskartellamt) had decided to refer various complaints against Google to the European Commission to have issues of cross-national relevance dealt with in one proceeding. This proceeding is still pending.

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