ECJ ruling on ancillary copyright: Meta must pay for press content in Italy

The long dispute between tech giants and the European press industry has reached a new chapter. In case C-797/23 against Meta, the European Court of Justice (ECJ) clarified on Tuesday: EU countries have far-reaching powers to enforce “appropriate remuneration” for press publishers. The ruling confirms: National regulations that oblige platform operators to negotiate and disclose data are compatible with EU law.

The procedure originated from a legal dispute in Italy concerning ancillary copyright on the internet. Meta had sued against a decision by the Italian communications regulatory authority (Agcom) after it had set the criteria for the remuneration of online content. The US corporation argued that the Italian regulations unduly restricted entrepreneurial freedom and violated the European framework for digital markets.

The judges in Luxembourg now see it differently. While they acknowledge that the obligations constitute an interference with entrepreneurial freedom, they also state that this is justified by the aim of ensuring a fair copyright market and protecting media pluralism.

Data transparency and mandatory negotiation

The trigger for the dispute was the ancillary copyright for press publishers, which was enshrined EU-wide by the Copyright Directive of 2019. Article 15 of the EU law protects press publications online for two years. “Individual words” or “very short excerpts” from a press article may be used freely. Hyperlinks are also excluded. Similar to Germany, a dispute arose in Italy over how much money users of press content like Google and Meta, the Facebook and Instagram parent company, must pay publishers in licenses.

The Italian Parliament introduced a mechanism in Article 43 of the national Copyright Act for cases where no agreement is reached between the parties. In such a situation, Agcom can determine the amount of “fair compensation” due to publishers for the use of their protected articles by platform operators.

A key point of the ruling concerns the power imbalance between platforms and publishers. The ECJ explains that publishers are in a weak negotiating position because often only the platforms have the data to quantify the economic value of a use. Therefore, it is lawful to oblige providers like Meta to disclose the information necessary for calculating remuneration. Furthermore, operators may not simply restrict the visibility of news content during ongoing negotiations to exert pressure or obscure the value of the content.

At the same time, the ECJ also sets limits for the member states: A claim for remuneration only exists if the platform actually uses the content. Furthermore, publishers must retain the freedom to grant a usage license free of charge or to prohibit distribution entirely. According to the decision, remuneration must always represent the direct economic consideration for the permission to reproduce or make publicly available.

Signal effect for the German market

The ruling is likely to have an impact on Germany as well, where similar structures exist. In Germany, the German Patent and Trademark Office (DPMA) acts as an arbitration body and, in this capacity, is intended to help – similar to Agcom – to agree on appropriate remuneration. An interim agreement negotiated under its auspices provides, for example, that Google pays 3.2 million euros annually to the collecting society Corint Media for the use of press products.

In the main proceedings, the dispute over fair compensation continues before the DPMA. The decision from Luxembourg now strengthens the position of the arbitration bodies and publishers, as it legitimizes the legal framework for such mandatory negotiations and information obligations. If no long-term solution is found, the courts in Germany would also be involved. The current ECJ ruling would serve as a key guideline for legal interpretation.

(mki)