Google News: – Fair Use or Fair Game?

August 16, 2006

Google’s continued success has led its users to demand access to high-quality, up to date and accurate information. In response, Google’s search domain has expanded beyond traditional Web pages. It now offers its users the ability to search for the cheapest online shopping sites, to locate particular discussion groups and to access locally-based services. Google’s search facilities now extend to books, videos, news content and maps.  In particular, the Google News service compiles links to news stories published on other Web sites.


Perhaps inevitably, the expansion in Google’s content has led to disputes with intellectual property owners, most recently with news providers who have complained that links to their content are accessible through Google’s site. 


Use of Publishers’ Content


Copyright holders typically look for ways to make money through licensing their content, and recent publicity concerning Google’s record profits (which increased by 60% in the first quarter of 2006 compared to 2005) have arguably made it an attractive target for publishers.


Many press agencies generate revenue by selling subscriptions to their Internet news services. Since Google News offers free access to this type of material, there is plainly a risk to the publishers’ online revenue.


Agence France-Presse


Last year, Agence France-Presse (AFP), one of the world’s largest press agencies, issued proceedings for copyright infringement against Google in the US, seeking at least $17.5 million in damages. AFP tried to prevent Google News from displaying its content, and alleged that Google’s use of AFP’s subscription-only headlines and images infringed its copyright.


Google subsequently removed all AFP’s content from Google News, pointing out that it allowed publishers to ‘opt out’ of the service, although AFP is continuing to pursue its case.  For their part, copyright holders point to the impracticality of ‘opting out’ of hundreds of search engines.


A different approach to Google’s services has been taken by Reuters, one of AFP’s main competitors. Reuters has entered into a partnership with Google and actively promotes its news content through Google’s sites.  Arguably, use of news content in this way helps to drive traffic to the publisher’s Web site, thereby increasing per-click advertising revenue.


 Associated Press


More recently, Google has hit the headlines as a result of a dispute with Associated Press (AP). AP is a not-for-profit organisation owned by various US news companies, and a main provider of the news items displayed by Google on its Web site. AP took a different approach to AFP, and entered into confidential negotiations with Google which had been ongoing for several months until the business relationship between AP and Google was disclosed earlier this month.


The precise financial details of Google’s deal with AP are the subject of a non-disclosure agreement. It is not clear, for example, whether Google’s payments to AP will be made on a commission basis. However, it appears that AP’s content will be used as the basis of a new product to complement its Google News service, and full details are expected in the next few months.


Google is perhaps keen to avoid setting a precedent whereby it pays publishers for their content, although AFP is no doubt hoping that disclosure of a ‘deal’ with AP will bolster its claim that Google was making unauthorised use of its copyright material.


Fair Use?


Google has always maintained that its use of images, content and links to third-party sites comprises ‘fair use’, and therefore is not an infringement of copyright. It also points out that the only ‘use’ it makes of the material is to point out news stories and photographs which are posted on other Web sites.


The stakes are high for Google if its position on ‘fair use’ is challenged: a successful challenge would have a significant impact on the way in which Google used third party content, affecting not just news content but the images, scanned books and other libraries which are offered to Google’s customers and help to distinguish Google from its search engine competitors.


What Next?


Google is no stranger to controversy concerning intellectual property: its ever-popular Adwords programme has led to considerable debate as to whether Google should permit third parties to ‘bid’ on search terms which are protected as trade marks.


Inconsistent decisions reached in different national courts have not improved the position: whilst Google has been found liable for trade mark infringement in France, the UK courts have indicated that this type of ‘invisible use’ is unlikely to constitute trade mark infringement. Google’s trade mark policy offers brand owners in the UK and Europe some protection, but as with news content, the extent to which Google should be liable for infringement has been scrutinised.


Google’s continuing success and growing reputation is unlikely to abate the stream of spurious claims brought against it by so called ‘copyright trolls’. However, the current disputes with news publishers raise interesting issues as to the capacity of copyright law (which originated in the era of the printing press) to cope with the instant dissemination of online content, on demand, throughout the world. It seems that, if AFP’s arguments are successful in the US courts, the future of aggregated news sites (such as Google News) may well be called into question.  



Katie Withers is a solicitor specialising in Intellectual Property law at Eversheds LLP.