Google makes the news by infringing the copyright in news articles…

The Belgian Court of Appeal has recently upheld a 2007 decision that internet giant Google has infringed the copyright in news article snippets published on its Google News website.
The case related to the news aggregation site, Google News, which operates using “web crawling” devices to identify news articles on the websites of major news publishers.  In some instances, hyperlinks to these external sites are then placed on Google News along with the title and the first one or two lines of the article to give the internet user a “snippet” of the article.  In others, the title linked to a cached version of the article, without taking the reader to the publisher’s website.  Google uses its Google News site to generate revenue by selling advertising on the site, however it generally does not enter licensing agreements for the use of the information it receives using its “web crawling” devices.
Copiepresse (which represents two Belgian news publishers) argued that Google was infringing the copyright in news article snippets published on its Google News website and that Google was deriving economic benefit from the content without providing payment to the copyright owners.  Copiepresse claimed that Google went beyond providing a mere search engine to being a “portal to the written press”. 
In response, Google argued that it had not infringed the copyright purportedly held by the news publishers because:

  • the small fragments of information displayed on the Google News website were not original elements capable of copyright protection;
  • Google was merely reporting the news and as such was eligible for an exception for fair reporting of the news; and
  • Google had an implied licence to use the information as the news publishers had taken no efforts to prevent their publications being indexed by Google.

The Court held, at first instance and on appeal, in favour of the news publishers, dismissing each of Google’s arguments, saying that:

  • some of the displayed headlines were capable of copyright protection.  This is interesting given the decision of Bennett J in Fairfax Media Publications v Reed International (see our post here), where the Australian Court held that headlines are generally too “insubstantial and too short to qualify for copyright protection as literary works”.  However, this is not the first time that a Court has found that copyright can subsist in a headline, for example, see the UK High Court’s decision in The Newspaper Licensing Agency Limited &Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch);
  • no copyright infringement exemption for fair reporting of the news applied as Google was merely reproducing the news article snippets and not producing or commenting on the news.  The basis of this finding may reflect the more restrictive “fair dealing” or “fair use” defence in Europe compared to the United States and Australia; and
  • obtaining a copyright licence is an opt in position not an opt out one, thus the failure of the news publishers to prevent their publications being indexed does not imply a licence.

On appeal, Google additionally argued that it was not infringing copyright and was merely providing a link and short introduction to the news article, and that by doing so it was encouraging internet users to visit the publisher’s website.  The Belgian Court of Appeal rejected this argument and upheld the initial decision.

As a result of this decision, Google was forced to remove all content sourced from the relevant Belgian news publishers from its Google news website or face a fine of €25,000 per day.   

This case again raises the issue of copyright protection and the use of aggregation websites which collect and collate content from other websites without a corresponding licence and without payment for the use of the content.

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