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In an eagerly awaited judgment, the Brussels Court of First Instance has largely confirmed a preliminary order in favour of Copiepresse, a trade association representing the publishers of the main French and German newspapers in Belgium, in a copyright infringement action brought against Google. The judgment confirms that Google must remove all Copiepresse –owner newspaper material from its Google news portal on pain of daily penalties for non-compliance. Google succeeded only in having the harsh level of daily penalties for non-compliance reduced to more reasonable levels.
Google News reproduced and published headlines and short extracts of certain Belgian newspaper articles. The Court rejected Google's argument that its service was simply an intermediary between the information and the public. The Court considered that Google's search engine was a means of gaining access to the news portal that contained lengthy extracts and verbatim quotations from the articles. Google's argument that copies stored in its memory were temporary only was also rejected on the facts, because copies are in fact stored on a long lasting-basis enabling users to access them.
Having been found culpable of infringement of copyright, Google advanced a number of defences which were roughly handled by the Court. Google argued that copyright should be subordinated to the right to freedom of expression which is enshrined under Article 10 of the European Convention of Human Rights. This was dismissed by the Court who said that freedom of expression was not relevant when it was Google's boast that no human agency was involved in the production of its news service! Google then tried to avail itself of the fair dealing exceptions for criticism, review and news reporting. The Court said that these exceptions were to be construed narrowly as indicated in the Berne Convention. Once again, the mechanistic nature of Google's operation counted against it. There was no attribution to authors, nor was there any comment on the articles themselves simply their reproduction. In a sign of desperation perhaps Google tried to run a competition-based argument but that was rejected as well.
The judgment is a classic example of continental droit d'auteur philosophy at work. The confrontation between this philosophy and the internet gave rise to a predictable result in this case. In finding that a search engine requires prior permission from a newspaper publisher to cache copyright content, the Court has disregarded the well-established practice on the web of using robot-based protocols and metatags to refuse permission to cache or archive material. In the US, the absence of such refusal has been held to constitute an implied permission to reproduce the material. The Court dismissed this argument by saying in effect that you can't infringe copyright and then ask if it's alright.
Google has announced that it will appeal against the judgment. This is no surprise: the prospects of paying licence fees to a vast number of organisations who will now be putting their head above the parapet will not be attractive to it. Stephen Hornsby
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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