Google News: Belgian Court Ruling

Laurie Kaye reports on a new development in an ongoing saga and asks ‘When is a search engine not a search engine?’ Apparently, the answer is ‘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 In the face of a fine of €1 million a day, Google has withdrawn the offending material.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.

 

For fuller coverage of this and the wider issues, and a brief explanation of ACAP (Automated Content Access Protocol), see Laurie Kaye’s article here.

For an article by Katie Withers on earlier Google News developments, Google News – Fair Use or Fair Game?, click here.

 

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.

Published: 2006-09-22T00:00:00

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