Right after coming back from a surely well-deserved summer break, the German competition authority, the Bundeskartellamt, published its decision as regards a complaint brought by press publishers against Google over the German ‘snippet levy’, locally referred to as the Leistungsschutzrecht. Press publishers argued that by not displaying snippets, which are small pieces of text below the hyperlinks in search results, Google was abusing its dominant position. At the end of this rather bizarre complaint, the answer of the antitrust watchdog is simple: if an online service does not want to acquire a license for the display of snippets and hence only displays search results in a more limited, shorter version, it can do so. There is nothing in antitrust law that would prevent companies from doing so, even if they are found to be dominant on a given market.
Let’s quickly recap the facts: In August 2013 Germany passed the controversial ancillary copyright for press publishers. The law tried to give press publishers exclusive control over the use of snippets on all online platforms. Brushing aside serious legal and economic concerns, the law required online aggregation services to acquire a license for the display of snippets. Various online players decided to simply not carry snippets of content produced by VG Media members, the collecting society tasked with enforcing the ancillary copyright.
Google took a similar approach, continuing to include these publishers’ content in search results, but displaying only headlines, with no related snippets. Axel Springer, Germany’s biggest news publisher and the major driving force behind the Leistungsschutzrecht, even gave Google (and Google only) a free licence to display snippets of their content. This did not prevent VG Media from lodging a claim against Google with the German competition authority arguing that the popular search engine was abusing its dominant position by not displaying snippets. It seems VG Media’s hope was for competition law enforcement to compel Google into licensing agreements for a practice which should not require a license under copyright rules in the first place. (View CCIA’s detailed background and explanation of ancillary copyright legislation here).