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Google News Copyright Case :: Laurence Kaye

Google News Copyright Case :: Laurence Kaye

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Published by: adorkable81 on Jan 28, 2009
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02/06/2013

 
 
GOOGLE NEWS COPYRIGHT CASE
When is a Search Engine not a Search Engine? When it’s a Publisher!
 
Google has just received a nasty shock in its attempt to change the copyright principle of „opt in‟ to „opt out‟.
 A Belgian Court has recently ordered Goog
le to remove from its Google News service and from Google‟s cache
servers articles and photographs extracted from the daily French and German-speaking press published inBelgium. The Court decided that Google News was acting as an information portal (i.e. like a publisher) ratherthan as a mere search engine. As a result, it needed consent to use third party material in the same way as anyother re-publisher. By failing to obtain consent from the Belgian publishers, the Court decided that Googleinfringed the copyright and database right in the articles, photographs and other materials displayed on GoogleNews and stored in its cache.
The Court drew a distinction between Google‟s activities as a search engine and as a provider of information
portal service.
Whilst both activities involve Google‟s search engine indexing and storing content, Google News
goes a step further by presenting automated news summaries to its users. To do that, the Court decided that itneeded permission. Amazingly, Google decided not to make a Court appearance so the injunction was granted without Google beingrepresented. In the face of a
fine of €1 million a day, Google has withdrawn the offending material. However, the
Judge also ordered Google to publish judgement on the Google News home page. At the time of writing, Googlehas not done this and has also lodged an appeal against the judgement.
Search engine v information portal
The judgement was delivered on 8
th
September 2006 by the Belgian Court of First Instance in Copiepresse vGoogle Inc. The decision follows a complaint brought by Copiepresse, a company which manages copyright forthe Belgian French and German-speaking press.There were several key factors which the Court considered were indicative of Google News acting outside thesp
here of a „mere‟ search engine.
 
 
It causes the newspaper publishers to lose control of their web sites and their content. Whilst Google News
links to an article on the newspaper publishers‟ servers, once the publishers remove an article it still remains
accessible on Google News via the link to the Google cache.
 
The appearance of automatically generated headlines on Google News means that users may avoid or by-pass the newspaper sites, resulting in a reduction of traffic and, therefore, loss of advertising revenue to thepublishers.
 
Google News „short
-
circuits‟ other protections for the publisher such
as copyright notices and terms of use.
 
 Access to the newspaper articles and other material via Google‟s cache results in other missed opportunities
for the newspaper, including reader registration and re-distribution rights.
  Alarm bells in the US!
Google has faced similar actions in the US with mixed results. In Field v Google Inc, a lawyer owning copyright ina number of works filed for copyright infringement against Google for its use of cached links to these works. The
Court found in Google‟s favour. It
considered that the claimant had made his work freely available on the web
 
 Page 222 September 2006
without taking any preventing measures. Furthermore, Google could rely on the US “fair use” defence to
copyright.In contrast, in Perfect 10 v Google, a magazine sought to prevent Google displaying thumbnails of copyrightimages from its own server. The Court held that the fair use defence was not available to Google, where it
considered Google‟s commercial gain in view of advertising revenue to be a decisive factor.
Where next?
Not surprisingly, Google has appointed lawyers in Belgium to appeal the decision which goes to the very heart of 
Google‟s business model.
 Put simply, Google builds its advertising-based model on third party content which its spiders automatically index(i.e. copy), store and display. Although services such as Google News may offer the user the opportunity to link 
back to third parties‟ web site, they are also in competition with their sources.So what‟s the solution? Well, if you ask the publishers, they w
ill remind you of the well-established copyright
principle of „opt
-
in‟. “If you want to re
-
use our material, come and ask us for permission.” But in the 21
st
century
world of automated search engines, you can‟t expect search engines to call up for permissi
on or send a fax.What you need is a 21
st
century solution to a 21
st
century need
 –
automated rights clearance.
 ACAP
 With that in mind, a the World Association of Newspapers (WAN), the European Publishers Council (EPC) theInternational Publishers Association (IPA) and the European Newspapers Association (ENPA), announced todaythat they are preparing to launch a global industry pilot project that aims to avoid any future clash betweensearch engines and newspaper, periodical, magazine and book publishers.The new project, ACAP (Automated Content Access Protocol), is an automated enabling system by which the providers of content published on the World Wide Web can systematically grant permissions information (relatingto access and use of their content) in a form that can be readily recognised and interpreted by a search enginespider, so that the search engine operator (and ultimately, any other user) is enabled systematically to complywith such a policy or licence. Effectively, ACAP will be a technical solutions framework that will allow publishers
worldwide to express use policies in a language that the search engine‟s robot spiders can be taught to
understand. ACAP was presented in detail at the Frankfurt Book Fair and will be launched officially by the end of the year.If you want to read more about the legal debate about search engines,click here and follow the link to the
 „Knowledge Zone‟ on the author‟s web si
te.Laurie Kaye is the principal of Laurence Kaye solicitors, specialists in digital law, publishing and IP law. Laurenceis actively involved in the legal aspects of machine-based content permissions. Read hisblog and visit Laurence
Kaye‟s 
 “The ability to express policies for access to and use of content is critical to
every  
relationship involving thetrading of content. Until recently, these have been expressed on paper, in licences and other forms of agreement. However, in practice it is now becoming apparent in many different content trading relationships thatthe ability to express policies in a machine-readable form is critical, either to the creation of a market or to its
efficient functioning. While ACAP‟s initial focus is on the relationship between publishers and search engines,
where constant referrals to the courts are a clear indication of a market that is not functioning properly, it is a

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