Searching for a copyright regime beneficial to search engines

 

Did you surf on the internet today? If your answer is yes, then you probably visited Baidu.cn if you are Chinese, Yahoo.co.jp if you are Japanese, Naver.com if you are South Korean, Google.com or Bing.com if you are American Yandex.ru if you are in Russia, and one of the European versions of Google if you live somewhere between Iceland and Russia. The last time a company dared calculate the number of requests made on search tools in a month, it came up with the incredible number of 113 billion searches conducted worldwide in July 2009 (ComScore, August 2009).

Search engines are critical to our digital and offline lives. They are at the crossroads of information channels. To help us accessing what we would like to find, they use robots that never stop crawling the web to retrieve data. Each search tool builds an index from what has been collected. Some engines also create a ‘cache copy’ of the web content, from which users may read a page that is currently unavailable. When users look for images, results are typically returned using the ‘inline linking’ technique, by which search engines display thumbnails of pictures stored on third party servers. Tech-savvy web publishers can include in their page hidden codes to prevent robots from crawling or indexing their content (they rarely do so, however).

By design, search tools are based upon the use of content that is not theirs. Part of this content is subject to copyright. When search tools create copies, or return results in the form of texts or images, do they infringe copyright law? The answer is different from country to country. This leads to undesirable legal uncertainty, an issue that should be resolved, as a secure business model for search engines means the guarantee for all us to use them for free.

US: legal benediction of search engines

In 2008, Google said its systems that process links had found one trillion unique URLs on the web. Behind them are millions of people publishing content… and not all them of agree to the use of their content by search engines. Among them was Blake Field, who complained before a US court that Google was engaged into unauthorized copying when it created a cached version of the website where he posted poems. He also alleged that the fact of displaying cached copies as a result to users was unauthorized distribution. The court not only ruled that Google’s disputed acts were covered by the fair use exception, but also that the person who publishes online accepts to be included in search tools index, except if notice is given of a refusal. In other cases before US courts (Kelly v. Arriba, and Perfect 10 v. Amazon & Google), it was similarly held that the way search engines function is not contrary to the Copyright Act (and that the so-called ‘safe harbor principles’ could apply, an issue which will not be discussed here).

In other countries such as Australia, Canada, India or Israel, which legislation is more or less inspired by the American copyright regime, search engines activity may also be deemed lawful. But this is not necessarily the case in European States.

Europe: judicial jeopardy for search engines

The EC Directive 2001/29 on copyright in the information society provides for exceptions or limitations to the intellectual property of those whose works are being used on the web. Some temporary acts of reproduction “which are transient or incidental and an integral and essential part of a technological process” cannot be objected to by reproduction rights holders. This provision was drafted to protect internet service providers, but was not designed to take into account search tools activities, and cannot convincingly be seen as applying to them.

Search tools do not display excerpts of websites, resized pictures, or full titles, in a way that is fully compliant with the EU copyright regime. This opened the door to several lawsuits against them – actually only against the biggest, Google – in Belgium, France, Germany, and Spain (in Italy, there are pending proceedings against Google before the national competition authority, as a professional group of newspapers publishers complains of some of the search tool practices; this case which does not directly deal with copyright will not be addressed here).

In the first two countries, it was ruled that storing content in the cache memory is an illegal reproduction, and/or that displaying third parties’ content in results pages infringes their rights. French caselaw is nevertheless divided, as one court found that the applicable law should be the US Copyright Act (this court said that the place where the copy was made should prevail, not the one where it was made available). It then ruled that Google’s use of photos was fair.
A Spanish court also referred to fair use… but this time without any reference to the American regime! After having noted that it cannot be denied that Google’s activity violates the complainant intellectual property rights, an artist who was unhappy to see his works in the search tools results, the Barcelona jurisdiction ruled in favor of the American company. This paradoxical ruling highlights the tension that exists between the copyright rules and the operation of some of the most popular services on the web. A parallel can be drawn with a similar case that took place in Germany and went up to the Supreme Court. After lower courts had different opinions on the lawfulness of Google Images Search, the BGH eventually ruled that the search tool could understand the complainant’s actions as consent to the display of her graphic works in search results.

Towards a protective regime for search engines?

Perplexity is the first reaction to this rapid survey of European States caselaw. Courts either apply the strict rules of copyright, which results into a sanction of search engines, or tend to be more ‘creative’ to issue a decision in favor of search engines. Among them, the German approach is the most interesting, in that it finds that publishing online equates to granting an implicit license to search tools to index the content and use it to provide their services. The court’s interpretation of the facts is interesting, as it means that coming to the networks world would not be neutral, and  would imply consent to search engines practices (which would already seen as customary though really recent). In the same time, this approach may be seen contradictory to individual views on the exercise of copyright: when a lawsuit is brought by an author, it means in itself that this right owner is at least reluctant to the use of copyrighted works by a search tool!

It is only a very limited number of persons who decided to dispute the possibility for search tools to use what they posted online, and the risk for the latter may seem extremely low. Nevertheless, it remains problematic that search engines may at any moment suffer from a literal application of the EU copyright regime, given the social significance of their activities. The fact that European courts oscillate from one opinion to another reveals a lack of legal security. A change in the law (or a ruling of the Court of Justice of the European Union in favor of implied licenses, if such a case were to be filed before it) to unambiguously protect search engines in view of their social role, could be a way to find a balance between the necessary defense of intellectual property rights and the crucial access to information.

Cédric Manara (www.cedricmanara.com) is an associate professor law at EDHEC Business School, France (LegalEDHEC Research Centre). He is currently an affiliate researcher at the IPR University Center. The research in progress summarized here was made possible by a gift from Google Inc.

Article published in IPR Info, 5/2010