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Case-law-Copiepresse, SAJ and Assucopie versus Google-Appeal-Summary

Case-law-Copiepresse, SAJ and Assucopie versus Google-Appeal-Summary

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Published by Axel Beelen
This is a summary of the Google News.be appeal decision (Belgium) (in English). The decisions dates of May 5th 2011.
This is a summary of the Google News.be appeal decision (Belgium) (in English). The decisions dates of May 5th 2011.

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Published by: Axel Beelen on Jun 12, 2011
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06/12/2011

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Axel BEELENSAJ juriste@saj.be@Beelbax (Twitter)8/6/2011
GOOGLE NEWS.BE: APPEAL
1. Facts
Google News
Through Google.news, Google has developped a specialised search engine based on theindexation of press articles published on the net.Google News is in fact a pure portal to the written press, Google reproducing and displaying as itsaw fit a significant part of the text of the articles and this without having obtained the agreement of  the right holders.
Cache
If you click on the «Cached» link of a web page, Google will show you the web page as it lookedwhen it was last indexed.In order to index millions of pages every day, Google uses an «army» of indexation robots, calledGoogleBot. Each time one of the robots visits a page, it recovers it and stores it on the Googleservers. This version of the document is called the cached version.
2. Decision
The judge has concluded that the activities of Google News (i.e. the reproduction andcommunication to the public of the titles of articles and the short extracts from articles) and the useof the Google «cache» (i.e. the registration accessible to the public of the so-called «cache» memory of articles and documents) breach Belgian copyright law.The Brussels judge also ordered the company Google to remove from Google News.be andfrom the «cache» of Google.be and Google.com, all the articles of the Belgian daily press, dated from the notification of the order under penalty of a fine of 
25 000 per day of delay.Remember that we are still in the cessation order based on article 87 of the act of 30 June 1994relating to copyright and related rights. Google can now decide to go in front of our Supreme Court(Cour de cassation) in a delay of three months after he will receive an official translation of the May decision.After the cessation procedure will begin the procedure to establish the damages occured by Google to the plaintiffs.
Reproduction
1
 
The judge has concluded that there was consequently a material reproduction by fixation of thework and communication of this to the public in accordance with article 1 of the Belgian act oncopyright.Because there is a reproduction and availability to the public by Google of the copy of the originaldocument stored in its own memory.That’s why the practice at Google consisting of saving works protected by copyright in its so-called «cached» memory and of allowing Internet users to access from the said memory itself (without referral to the original site) consequently constitutes an act of reproduction andcommunication to the public.
Google News
That it is apparent that by reproducing titles of articles and short extracts from articles on its siteGoogle.News, Google reproduces and communicates works to the public protected by copyright.
Elements of the decision
In its judicial decision of May 5th 2011, the Court of appeal of Brussels stated that the activities of Google News and the use of the Google «cache» notably violate the laws relating to copyright andrelated rights (1994). It was already stated in the first decision of February 2007.Like in 2007, Google could not establish that it could maintain any exception as stipulated by thelaws relating to copyright and related rights (1994).Exceptions rejected
Exception of citation
Considering that pursuant to article 21 § 1st of the act of 30 June 1994 (as modified by the actof 22 May 2005): “Citations drawn from a lawfully published work, carried out with a view to critique,polemic, review, teaching or in scientific works, in accordance with honest use in the profession andinsofar as justified in the aim pursued, do not damage copyright.The citations stated in the previous paragraph must mention the source and the name of theauthor unless that should prove impossible.»
Rejected
because articles cited were not in the framework of a coherent commentary of which they must only comprise an illustration. The review under this exception must also compriseother elements. Considering that Google.News is exclusively made up of extracts of newspaper articles groups by topic and that the reference is completeley automated, the exception of citationcould not applied.
Exception for reporting news
Considering that pursuant to article 22 §1 of the act of 30 June 1994 “When the work waslawfully published, the author cannot prohibit:
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