Ref. Ares(2019)7073401 - 15/11/2019
EUROPEAN COMMISSION
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
Director-General
Brussels,
GROW/B/2
(2015) 4899298
NOTE FOR THE ATTENTION OF MR L. ROMERO REQUENA
DIRECTOR GENERAL, LEGAL SERVICE
Subject: Legal guidance on the scope of Directive (EU) 2015/1535 laying down a
procedure for the provision of information in the field of technical regulations
and of rules on Information Society services in relation to the rules on
ancillary copyright adopted in Germany and Spain
1. Application of Directive (EU) 2015/1535 to online news aggregators services
Germany and Spain have adopted rules concerning online news aggregators which could fall
under Directive (EU) 2015/1535, as detailed below. However the draft acts had not been
notified to the Commission. We would like to ask the Legal Service for its opinion on the
application of Directive (EU) 2015/1535 to these rules.
Member States are required to notify to the Commission under Directive (EU) 2015/1535, at
draft stage, technical regulations, including rules on information society services. Information
society services are defined as services normally provided for remuneration, at a distance, by
electronic means, at the individual request of a recipient of services. Only rules that are
specifically aimed at information society services and do not concern these services in an
implicit and incidental manner have to be notified.
Online news aggregators display the news published online by press publishers, via
hyperlinks accompanied by short extracts. Such services are thus offered online, at a distance,
at the request (search query) of the beneficiary.
As concerns the element of remuneration, Directive 2000/31/EC on certain legal aspects of
information society services, in particular electronic commerce, in the Internal Market,
mentions in recital 18 that "
information society services are not solely restricted to services
giving rise to on-line contracting but also, in so far as they represent an economic activity,
extend to services which are not remunerated by those who receive them, such as those
offering on-line information or commercial communications, or those providing tools
allowing for search, access and retrieval of data; information society services also include
services consisting of the transmission of information via a communication network, in
providing access to a communication network or in hosting information provided by a
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Téléphone: (32-2) 299 11 11.
Office: BREY 14/110. Téléphone: ligne directe (32-2) 2956991 Télécopieur: (32-2) 2998043.
recipient of the service". The CJEU case law also recognises that information society services
extend, in so far as they represent an economic activity, to services "
which are not
remunerated by those who receive them, such as those offering on-line information or
commercial communications" (Case C-291/13 Sotiris Papasavvas, par 28). CJEU has
furthermore established that services of online searching, including paid referencing services
for advertisement ("sponsored links" displayed by Google) constitute information society
services (see judgment in joined cases C-236/08 to C-238/08 Google France par 22, 23 and
110).
I. German legislation
In May 2013, Germany adopted a law amending the Copyright law, by which they introduced
an exclusive right for publishers to make available to the public, press products, for
commercial purposes, making an exception for single words or small snippets. An English
version of the act is available at http://www.gesetze-im-
internet.de/englisch urhg/englisch urhg.html.
The relevant provision for the purposes of the Directive (EU) 2015/1535 is Article 87g, and
especially paragraph 4 thereof which states that the provision of public access to news
publications or parts thereof shall be permissible to the extent that this access is not provided
by commercial operators of search engines or commercial providers of services that aggregate
this content in a like manner:
(1) The right of the press publisher in accordance with Article 87f (1), first sentence, shall be
transferable. Articles 31 and 33 shall apply mutatis mutandis.
(2) The right shall expire one year after publication of the press product.
(3) The right of the press publisher may not be asserted to the detriment of the author or the
holder of a right related to copyright whose work or subject-matter protected under this Act is
contained in the press product.
(4) It shall be permissible to make press products or parts thereof available to the public
unless this is done by commercial providers of search engines or commercial providers of
services which process the content accordingly. For the rest, the provisions of Part 1,
Section VI shall apply mutatis mutandis.
In February 2013, the Commission asked the German authorities to notify the draft law in
case it contains technical regulations and to provide explanations to the Commission in
relation to this draft. The German authorities replied that, in their view, the rule did not
specifically target information society services and therefore it did not require notification.
They stated that Section 87f intends to establish an exclusive right for press publishers, in
order to ensure that online press publishers are not placed in a less favourable position
compared to other intermediaries. As concerns Article 87g(4), the German authorities
appreciated that the restriction placed on this exclusive right by that provision does not
regulate the operation of search engines or access as such (their reply is in Annex 1).
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As mentioned in the beginning of this note, the notification obligation in Directive (EU)
2015/1535 applies to those requirements of a general nature relating to the taking-up and
pursuit of information society services, in particular provisions concerning the service
provider, the services and the recipient of services,
with the exception of rules which are
not specifically aimed at information society services. This condition is detailed in the text
of the Directive as follows:
"
a rule shall be considered to be specifically aimed at information society services where,
having regard to its statement of reasons and its operative part, the specific aim and object of
all or some of its individual provisions is to regulate such services in an explicit and targeted
manner,
a rule shall not be considered to be specifically aimed at information society services if it
affects such services only in an implicit or incidental manner."(Article 1.1.e)
Recitals 17 and 18 of Directive 98/48/EC provide further elements for the interpretation of
this condition:
"
a provision specifically aimed at information society services must be considered as being
such a rule even if part of a more general regulation"
"
Whereas specific rules on the taking-up and pursuit of service activities which are capable of
being carried on in the manner described above should thus be communicated even where
they are included in rules and regulations with a more general purpose; whereas, however,
general regulations which do not contain any provision specifically aimed at such services
need not be notified;"
Finally, the Vademecum to Directive 98/48/EC exemplifies the condition that the rules must
be specifically aimed at information society services as follows …
draft regulations need not
be notified which relate only indirectly, implicitly or incidentally to information society
services, i.e. which concern an economic activity in general without taking into consideration
the typical technical procedures [our highlighting]
for supplying the information society
services (e.g. a provision which prohibits the distribution of paedophile material by any
means of transmission, including the Internet or electronic mail, among the various possible
means of dissemination)."
The explanatory statement accompanying the German draft act mentions that the right
introduced by the act aims to improve the protection of press products on the Internet. It
furthermore highlights that such protection is granted in relation to commercial providers of
search engines or commercial providers of services which process the content accordingly. It
can be inferred thus that the regulation is aimed to regulate the right of making available of
press products taking account especially of the activity of online search engines. The
legislation is intended, especially in Article 87g(4), to regulate relations between search
engines and press publishers – namely to allow press publishers to prevent the publication of
press clippings, unless the operator has obtained the required licence (see Drucksache
17/11470 in Annex 2).
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Therefore, it cannot be argued that the legislation affects the information society services
(online search services) in an indirect and implicit manner, as it targets, at least in Article
87g(4), the provision of such services in relation to press products. Concluding, in our opinion
the legislation concerns specifically the online search services and thus falls under Directive
(EU) 2015/1535.
We would welcome the opinion of Legal Service on this assessment.
II. Spanish legislation
Spain notified an initial draft law on copyright on 10 May 2013 (notification 2013/244/E);
however the provisions on ancillary copyright were added at a later stage and the draft was
not re-notified. The law was adopted on 5 November 2014. (see Annex 3)
Under Directive (EU) 2015/1535, Member States have to notify draft technical regulations
again to the Commission (and allow for the three months standstill) "
if they make changes to
the draft that have the effect of significantly altering its scope, shortening the timetable
originally envisaged for implementation, adding specifications or requirements, or making
the latter more restrictive"(Article 5(1) 3rd indent). According to CJEU case law, the
requirement that changes be significant applies to all of the situations referred to in Article
5(1) 3rd indent (see case C-307/13 Ivansson, par 44). Therefore, a draft with a newly
introduced requirement should be re-notified to the Commission, if it constitutes a substantial
change compared to the initially notified draft.
As a preliminary point, the definition of technical regulations in Article 1(1)(f) of Directive
(EU) 2015/1535 includes: technical specifications, other requirements, rule on services and
measures prohibiting the manufacture, importation or use marketing of service or
establishment of a service provider. It should be noted that Article 5(1) 3rd indent refers to
changes to specifications and requirements, ("
changes to the draft that have the effect of
significantly altering its scope, shortening the timetable originally envisaged for
implementation, adding specifications or requirements, or making the latter more
restrictive") and does not refer expressly to changes to rules on services. At the same time, the
rules on services are defined as "
requirement of a general nature …". Therefore, Article
5(1) 3rd indent which establishes the rules for the notification of modified drafts applies also
to rules on services, which are included under the concept of
requirements.
Article 32.2 of the Spanish copyright law establishes a new exception to copyright, under
which the electronic content aggregation service providers can make available to the public
non-significant fragments of aggregated content without authorisation from the right holder;
however, the right holders have an unwaivable right to receive fair compensation from the
electronic service provider. The Spanish law makes an exception for service providers that
provide instruments to search for isolated words, where the making available to the public is
produced without commercial purposes.
Article 32.2. La puesta a disposición del público por parte de prestadores de servicios
electrónicos de agregación de contenidos de fragmentos no significativos de contenidos,
divulgados en publicaciones periódicas o en sitios Web de actualización periódica y que
tengan una finalidad informativa, de creación de opinión pública o de entretenimiento, no
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requerirá autorización, sin perjuicio del derecho del editor o, en su caso, de otros titulares de
derechos a percibir una compensación equitativa. Este derecho será irrenunciable y se hará
efectivo a través de las entidades de gestión de los derechos de propiedad intelectual. En
cualquier caso, la puesta a disposición del público por terceros de cualquier imagen, obra
fotográfica o mera fotografía divulgada en publicaciones periódicas o en sitios Web de
actualización periódica estará sujeta a autorización.
Sin perjuicio de lo establecido en el párrafo anterior, la puesta a disposición del público por
parte de prestadores de servicios que faciliten instrumentos de búsqueda de palabras aisladas
incluidas en los contenidos referidos en el párrafo anterior no estará sujeta a autorización ni
compensación equitativa siempre que tal puesta a disposición del público se produzca sin
finalidad comercial propia y se realice estrictamente circunscrita a lo imprescindible para
ofrecer resultados de búsqueda en respuesta a consultas previamente formuladas por un
usuario al buscador y siempre que la puesta a disposición del público incluya un enlace a la
página de origen de los contenidos
As mentioned in the introduction to this note, online search services constitute an information
society service
1.
Furthermore, a provision such as Article 32.2 of the Spanish legislation, regulating the
conditions under which electronic service providers can make available press snippets to the
public can be considered a rule on services in the sense of Directive (EU) 2015/1535, i.e. a
requirement of a general nature relating to the taking-up and pursuit of information society
services, which is specifically aimed at information society services.
The provisions in Article 32.2 constitute an additional requirement which appears to affect in
a substantial way the provision of the news aggregation service, as they make mandatory for
the online operators to pay compensation to the right holder. According to the established case
law, any national measure which prohibits, impedes or renders less attractive the exercise of
providing services constitutes a restriction to that fundamental freedom, even if such a
measure is applicable without discrimination on grounds of nationality (see for instance Case
C-65/05, Commission v Hellenic Republic, par 48). These are the type of measures that
should be the object of assessment under the Directive (EU) 2015/1535, taking account of its
aim to establish the smooth functioning of the internal market. Furthermore, the significance
of this amendment can also be inferred from its practical consequences, such as the decision
of Google to stop providing the news services in Spain as an effect of this legislation. (see for
instance http://www.theguardian.com/technology/2014/dec/11/google-news-spain-to-close-in-
response-to-tax-on-story-links.)
In addition, as operators informed us, the introduction of this requirement in the draft law
prompted the Spanish Commission for Markets and Competition to adopt on own initiative a
report on the implications of Article 32.2. In that report, the authority considered that a more
1 Google declared that it does not make money from the news services, as it does not display adds on those
pages. http://www.theguardian.com/technology/2014/dec/11/google-news-spain-to-close-in-response-to-tax-
on-story-links. In any event, the condition of remuneration in the sense of Article 56 is aimed at excluding those
activities that are gratuitous. The activity of online searching, to which the news services are connected,
remains an activity provided for economic purposes.
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