GOOGLE Vs BEGIAN PRESS – NO NEWS FOR FREE

By Julie FELD  - julie.feld@vdepartners.be

Vanden Eynde & Partners – Belgium

1. On July 4 2007, Google filed an appeal against a judgement pronounced in Belgium in February 2007 which had heavily condemned the most important internet company worldwide.

Given the fact that Belgian copyright law is mainly based on European directives and is therefore substantively similar to the others European Union member states copyright law, a decision of the Court of Appeal of Brussels could set an important  precedent for how web search engines and on-line news providers link to copyright law, specially in the European Union.

A narrow look at the background of the dispute and after at the two judgements pronounced by the Brussels Court of first instance will clarify the situation.

2. Before any legal discussion, and before wondering why some newspapers clamber over each other to be in Google News, while others see it as a threat to their business, one should understand the technical facts which have lead to this legal dispute.

In order to index websites and webpages, search engines generally follow a protocol known as the « robots exclusion standard». If a site owner does not want its pages to be found, it indicates it in a specific file called « robots.txt » on its website. This file shows to Google, among others, that a page should be excluded from its search functionality.

When its search robot visits the web, Google does not merely identify pages to index them, it also takes snapshots of the webpages. It will then offer access to these snapshots via links called “cached” in the search results. Following that link instead of the headline link, takes the user to a page on the search engine’s own site and not on the target site.

The consequence is that, as soon as a page can no longer be seen on a web site, it is possible to call up a copy of this page via the “cached” hyperlink which goes back to the content of the page that Google has stored in the “cached” memory of its database.

Beside this “cached” feature, Google introduced in the course of the year 2003 a new service called “Google.News”. This service is aimed at offering to Internet users an overview of the press based on an automatic selection of news items from web servers of the written press.

Google News displays on its home page, in addition to a search box, article titles, each being accompanied by a short extract from the article itself, automatically selected and organised by topic. The titles constitute hyperlinks to the original articles on the newspaper publishers' websites.

Google.News was introduced in Belgium under the name “Google.Actualités” in January 2006.

3. Copiepresse is the management company of the rights of the Belgian French and German speaking daily press publishers. It aims at defending the copyrights of its members and to supervise the use by third parties of the protected works of its members. By letter of July 13, 2006 Copiepresse formally requested Google to remove its members' newspaper articles from Google.News and the Google cache.

Copiepresse contained that Google was reproducing and displaying on Google.News a significant part of the articles of its members, without having obtained prior permission from the newspaper publishers and even though the sites where these articles came from carried clear statements of copyright protection. Copiepresse also complained that the use of Google’s cache memory made it possible to circumvent the payment of the press article.

Google did not respond to this letter. 

4. Copiepresse therefore initiated substantive proceedings in Belgium on August 3 2006.

It reproached Google for not having been granted the necessary authorizations to lawfully publish press articles of its members and asked the Court to confirm that the activities of Google.News and the use of Google’s cache memory violated the copyright law and the database law.

Copiepresse also required the Court to order Google to withdraw all the articles of its members from its site and to publish the judgement to intervene under penalties if it did not abide to the requirements.

On September 52006, the Court approved Copiepresse’s requests, however without Google having been present at the hearing.

The Court established that the activities by Google News and the use of the « cache » by Google infringed the laws on copyright and on databases.

It ordered Google to withdraw all the articles, photographs and graphic reproductions from the Belgian publishers of the French- and German- speaking daily press, represented by Copiepresse, from the sites Google.News and from the Google “cache”, under penalty of a daily fine of 1.000.000 Euros per day of delay. It also ordered Google to publish in a clearly visible manner and without any comments, the entire judgement on www.google.be and news.google.be home pages for a continuous period of 5 days, under penalty of a daily fine of 500.000 Euros per day of delay.

Google immediately lodged an appeal against this default judgement.

5. In February 2007, the Court of first instance rendered its second judgement on this case. Others parties, such as Assucopie and SAJ (authors and journalists’ rights managing company) had joined the action of Copiepresse.

A thorough analysis of this new judgement is interesting at a time when one is waiting for the final decision of the Court of Appeal.

6. Before analyzing the main legal issues at stake, it should be underlined that Copiepresse’s claim was, among others, based on a law of August 10, 1998 transposing the EU directive of March 11, 1996 on legal protection of databases into Belgian law.

According to this law, a press site comes under the qualification of a database since it constitutes a collection of works, data or other independent elements, laid out in a systematic or methodical way and individually accessible by electronic means.

Copiepresse submitted that, in order to create its « news section », Google extracted daily, and in a systematic way, the contents published on the sites of Belgian press and had therefore infringed the rights of the producers of these databases in violation of the Belgian law on databases.

However, Court has considered that the database law does not open the case to a management company or a professional association but is solely reserved to the right holders or the producers of the databases.

7. To enter into the legal discussion in itself, let us remind that according to Article 1 of the Law of June 30, 1994 relating to copyright, the author has the sole right to reproduce a work or authorise the reproduction of a work. This article also stipulates that the author of a work has the sole right to communicate it to the public “by any process whatsoever including making it available to the public in such a way that any party may have access at the place and moment he chooses himself”.

7.1. As far as the cache memory is concerned, Copiepresse argued that when it indexes the web pages, Google robots make a copy of each page examined and stored it in its memory so that the Internet users will have access to this copy by clicking on the link “cached”. In other words, the Internet user is not sent via a hyperlink to the original site but consults the copy of the page stored on the Google website. This is consequently a material reproduction of the page, and thus of the article, and communication of this to the public.

In response, Google argued that it is the internet user, and not Google, who creates a copy of the work so that user is the only author of any reproduction or communication to the public. The only involvement of Google was the supply of mechanism allowing to make the reproduction possible or to realise a communication to the public.

Google also maintained that it only copied into its cache memory the HTML code of websites, containing text elements and links, but no images.

The court rejected this analysis as inaccurate. Unlike hyperlinks that refer to the sites of origin, Google, by saving works protected by copyright in its so-called “cached memory” and by allowing internet users to access from the said memory to the article made an act of reproduction and communication to the public. The fact that it only stored HTML code was irrelevant.

Moreover, the Court underlined that there are cases where Google allowed the Internet user to consult on its website documents that are not longer available freely. The fact that the articles remain viewable via the “cached” link on the site Google.be may cause prejudice to the publishers.

7.2. On the other hand, Copiepresse and the others parties considered that “Google.News” breached article 1 of the copyright law, since Google took the content directly from their sites, by copying the titles of articles and the slogans, without having obtained their prior agreement.

The Court said that it was unambiguously apparent that Google News reproduced and communicated to the public on its homepage protected contents, and was therefore violating article 1 of the law.

Google further argued on three specific issues.

Firstly, Google considered that the Google.News service was legitimised by article 19 of the European Convention on Human rights which guarantees the freedom of expression. The Court rejected this argument.

Secondly, Google disputed that the elements included on the website “Google.News”, i.e. the title of the articles and the first sentences of said articles, could not be considered as original elements benefiting from the protection of copyright law.

On this point, the Court said that a title may be eligible for protection if it fulfils the requirements of originality and found that some of the titles and opening lines appeared to be sufficiently original to qualify for copyright protection. 

Thirdly , Google contained it could rely on the exceptions stipulated in the copyright law like the exception of reporting news and the exception of citation, and consequently was not infringing Belgian copyright law.

As to the exception of citation, it must be reminded that article 21 § 1 of the law of June 30, 1994 (as modified according to the European directive) said that “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 and insofar as justified in the aim pursued, do not damage copyright.”

The Court found that Google News limited itself to listing the articles and classifying them by theme in an automatic way. It did not carry out any analysis, comparison or critique of the articles, which were not commented in any way. Consequently the exception did not apply.

As regards to the exception for reporting news,article 22 §1 of the law of June 30, 1994 provides that “When the work was lawfully published, the author cannot prohibit: 1ºthe reproduction to the public, with the aim of information, of short fragments of the works or plastic works in their entirety on the occasion of a report of news events”.

The Court concluded that this exception allows the reproduction or the communication to the public of a work, without its author’s permission, when it is carried out “with an aim of information” and “for the reporting of news events”. However it must relate only to short extracts which must be part of a larger report of news events.

The court considered that Google's reliance on this exception was contradictory to Google's position that it was only a search engine and concluded from the service provided by Google.Actualites that Google could not rely on the news reporting exception.

7.3 There is yet a last point of general interest.

Google maintained that if it would be found out to make copies of works protected by copyright and to communicate them to the public, it was because newspaper publishers had explicitly or at least implicitly consented to this referencing.

According to Google it was open to the publishers to use technical means (like robots.txt files) to exclude their publications from being indexed by search engines and these were standard methods known worldwide. Since the publishers did not implement the technical means, they were explicitly or implicitly agreeing to have their pages indexed and accessible via the cached links.

The court also rejected this argument. It held that copyright is not a right of opposition but a right for prior authorisation. This means that the authorisation had to be obtained in a certain way, prior to the intended use and that it could not be maintained that the failure to use standard technical exclusion methods such as the Robots Exclusion Standard and metatags amount to a certain and explicit agreement of the site publishers to the use of works included on the site as concretely used by Google News.

Moreover in this case Copiepresse had immediately reacted to the appearance of Google.News service on the Belgian market which was an unambiguous statement of opposition.

It should be underlined that this argument however succeeded in the US, in a judgement of a Nevada Court (Field v Google, Inc. -U.S.D.C. Nevada, 19 January 2006) in which the Court held that the plaintiff had implicitly licensed inclusion in Google's cache by not setting exclusion parameters in his site's metatags or robots.txt file, when he was familiar with those processes.

7.4.As to moral rights, the Court reminded that the author is granted the right to the respect of his work which allows him to object to any modification thereof. In this case, only an extract of the article of the journalist was reproduced so that there was a modification of his work.

Moreover, the name of the author of the article was not stated on the Google.News site so that there is also damage to the right to paternity.

7.5. The judgement thus confirmed that all articles, photographs and graphic representations from Belgian French and German-speaking daily press represented by Copiepresse should be removed from the sites (Google News and “Google cache” under any name whatsoever) under penalty of a daily fine of 25.000 Euros and decided that there was, this time, no justification to order the publication of the judgement.

In this case, the judge did not have to be concerned with the possible extra-territorial effects of his judgment since Google said that the effects of the withdrawal would automatically be worldwide.

8. On May 3, 2007 Google and Copiepresse made a joint press release informing that as from this date, Belgian French and German language daily newspapers were again referenced on the search engine.

However, Google accepted not to archive copies of the stories so that they would appear without a “cached” link in the search results of Google, thanks to their use of a tool that allows publishers to control how their website is referenced on the web (called noarchive tag).

9. Despite this partial settlement Google filed an appeal seeking to overturn the judgement.

The appeal could open the door to further lawsuits and limit the ability of search engines to display copyright material on their websites in Europe. This struggle of Belgian newspapers against the worldwide search engine could then be of great importance since it could have broad consequences.

For instance, Google had to delay its launch of Google.News in Denmark after Danish newspapers demanded a system that would allow them to "opt in" to Google's service, rather than having their content trawled automatically.

 To be continued thus…