When is a search engine not a search engine? Answer: when it’s a publisher

Google has received a nasty shock in its attempt to change the copyright principle of ‘opt in’ to ‘opt out’. Earlier this month, a Belgian court ordered Google 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 in Belgium. The court decided that Google News was acting as an information portal (ie like a publisher) rather than a mere search engine. As a result, it needed consent to use third-party material in the same way as any other republisher. By failing to obtain consent from the Belgian publishers, the Court decided that Google infringed the copyright and database right in the articles, photographs and other materials displayed on Google News and stored in its cache. The court drew a distinction between Google’s activities as a search engine and as an information portal. 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 it needed permission.

 

Amazingly, Google decided not to make a Court appearance so the injunction was granted without Google being represented. In the face of a fine of €1 million a day, Google has withdrawn the offending material.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 its judgment on the Google News home page. Google has not done this and has also lodged an appeal against the judgment.

 

Search engine v information portal

 

The judgment was delivered on 8 September 2006 by the Belgian Court of First Instance in Copiepresse v Google Inc. The decision follows a complaint brought by Copiepresse, a company which manages copyright for the Belgian French and German-speaking press. There were several key factors which the Court considered were indicative of Google News acting outside the sphere 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 removes the 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 the publishers.

 

·                     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 in a 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 without taking any preventative 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 copyright images 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 (ie copy), store and display. Although services such as Google News may offer the user the opportunity to link back to a third party’s Web site, they are also in competition with their sources.

 

So what’s the solution? Well, if you ask the publishers, they will 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 21st century world of automated search engines, you can’t expect search engines to call up for permission or send a fax. What you need is a 21st century solution to a 21st century need – automated rights clearance.

 

ACAP

 

With that in mind, the World Association of Newspapers (W.A.N.), the European Publishers Council (E.P.C.) the International Publishers Association (I.P.A.) and the European Newspapers Association (E.N.P.A), announced on 22 September that they are preparing to launch a global industry pilot project that aims to avoid any future clash between search 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 (relating to access and use of their content) in a form that can be readily recognised and interpreted by a search engine ‘crawler’, so that the search engine operator (and ultimately, any other user) is enabled systematically to comply with 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 will be presented in more detail at the forthcoming Frankfurt Book Fair on 6 October and will be launched officially by the end of the year.

 

Laurie Kaye is Chairman of the SCL Internet Group. He is a partner in Laurence Kaye Solicitors (http://www.laurencekaye.com). That firm’s Web site also includes other articles on related issues.