As it happens, Germany adopted a “model scale” of the new right in 2013 aimed specifically against web search engines, granting press publishers with an exclusive right to make the press product or parts thereof available to the public for commercial purposes, unless the use consists of individual words or very short text excerpts. Sounds familiar? The EU is about to introduce the same right in Article 11 of the new DSM Directive. Without some major adjustments to the provision that might not be such a good idea, considering the effect the right has had in Germany – even though the court is leaning to rule in favour of the collecting society VG Media, who is suing Google for remuneration based on the new right, Google will not go down without a fight, threatening press publishers with de-listing them, if they would not grant free usage rights to Google. This behaviour has earned Google a separate lawsuit for abuse of a dominant position, which was rejected by Landgericht Berlin denying any abuse by Google, the case is currently pending before the Court of Appeal in Berlin.

The entire conundrum just goes to show, that imposing a link-tax on news aggregators, might result in big news market players getting away without repercussions, and smaller press content providers getting stuck with the bill. Even scientific studies show, why the new ancillary right might not be a good solution.

Also, info for any member state wishing to adopt similar provisions on a national level: AG Hogan recently delivered an opinion that such provisions must be notified to the Commission beforehand.