Why does Yahoo

Not accepted: Yahoo fails with constitutional lawsuit on ancillary copyright

The search engine operator Yahoo failed for the time being with a constitutional complaint against ancillary copyright law. According to a decision of the Federal Constitutional Court on October 10, 2016, which was published on Wednesday, it is reasonable for the company to clarify the disputed legal questions via the normal legal process. The principle of subsidiarity requires "that a complainant, before filing a constitutional complaint, takes all available procedural possibilities in order to obtain a correction of the alleged constitutional violation or to prevent a violation of fundamental rights", it says in the decision (Ref .: 1 BvR 2136/14).

  1. ivv GmbH, Hanover
  2. SCHOTT AG, Mainz

Yahoo could therefore not assert in the proceedings that the economic existence as a search engine operator was threatened by ancillary copyright. According to the court, the sums estimated by Yahoo that would have to be paid to the collecting society Media (VG Media) do not result in the operation of the search engines "would become unprofitable through the obligation to pay remuneration". The risk of a long legal dispute does not result in its unreasonableness.

Search engine as an auxiliary activity for the press

Also speak against the acceptance of the constitutional complaint "The ability and need for interpretation of the challenged legal norms". The question of what under one "Press product" is to be understood and how long the "smallest text excerpts" that search engines are allowed to display without a license should first be clarified by the specialized courts before the Constitutional Court decides.

Yahoo had asserted that the ancillary copyright threatened the freedom of the press. The activity of the "Leading" the press user of the online media represented an auxiliary activity for the press protected by Article 5 of the Basic Law. The use of press products without a license agreement could also "have massive financial consequences in the form of claims for damages". Without the possibility of an immediate constitutional complaint, the company's economic existence is threatened.

Lawsuit pending at the Berlin Regional Court

VG Media is currently arguing with Google before the Berlin Regional Court about the question of the permitted length of the snippets and the permitted level of the tariff. Both sides had rejected a settlement proposal by the arbitration board at the German Patent and Trademark Office in Munich.

The arbitration board had rejected the tariff demanded by VG Media of six percent of the total turnover of Google as too high. Google can also display up to seven words free of charge, the verdict also said. In principle, however, the arbitration board considers the tariff to be applicable. However, both parties appealed against the decision, so that now the courts have to judge the ancillary copyright law. The EU Commission has now submitted its own proposal for the introduction of a Europe-wide ancillary copyright law.

Addendum from November 23, 2016, 11:49 a.m.

In their decision, the Karlsruhe judges gave some pointers on how the courts should interpret ancillary copyright law. The specialized courts would have to pay attention to "that search engines are subject to an automated operation, in which it is not immediately recognizable when a press product is available". A manual control in individual cases is "so far not possible". In addition, when interpreting the law "To take into account the interest of search engine operators to be able to use text excerpts to an extent that does justice to the purpose of search engines to make information on the Internet, including online press products, findable". This could mean that the snippets must not be made so short that the purpose of search engines is no longer served.

The Constitutional Court also points out that collecting societies are obliged to "reasonable usage tariffs" to enact. Should the courts not take sufficient account of the fundamental rights of search engine operators in their interpretation, the Constitutional Court could still decide on the question.