20.11.06 - Patrick Michielsen
There has been considerable press publicity over the recent court order obtained by a Belgian newspaper publishers association preventing Google from linking to its members’ news stories. Here we describe the full background and implications of this controversial action.
Copiepresse, an association representing the publishers of the French- and German-language newspapers in Belgium (such as Le Soir, La Libre Belgique and La Dernière Heure) and the interested journalists, requested Google to remove all links to newspaper articles, photographs and reproductions published in Belgium from its Google News service which scans some 400 Belgian news sites. Copiepresse claimed that Google was accessing its protected content without permission in breach of copyrights and database regulations, whereby it freely copied headlines, text and pictures for which the publishers spent a lot of money producing them.
In March 2006 Copiepresse had requested a descriptive seizure in an attempt to evidence that Google infringed upon the copyrights, neighbouring rights and database rights of the newspapers and their respective websites. In his technical findings following the descriptive seizure, the appointed judicial expert appraised that Google News is to be considered an “information portal” and not a “search engine”, implying that Google created a derivative work without respecting the original copyright holders. Furthermore the expert ascertained that, while an article is still online on the proprietary sites of a Belgian newspaper publisher, Google redirects the user, via the underlying hyperlinks, to such proprietary page where the article can be found. But as soon as the article can no longer be seen there, Google makes it possible still to obtain the contents of such article via the “cached hyperlink”, i.e. the link going back to the contents of the article that Google registered in the cached memory of its gigantic database stored on its own servers.
Copiepresse argues that its members are producing copyright protected works and that copyright law clearly states that to re-use that content one has to ask for explicit prior permission. The association wants every search engine, aggregator or re-user of such content to respect this principle and, where indicated, to pay a fair financial compensation for such re-use.
Google’s standpoint is that its Google News service does not infringe national or international copyright laws. It counter-argues that it does not re-publish entire articles, since it only uses introductions to articles, similarly to how newspapers may quote from a book, whereby it never shows more than the headlines and a few snippets of text. Moreover Google argues that it applies a “fair use” or "you only had to ask" policy to its Google News service. This policy allows publishers to opt out of Google News and Google will then promptly remove a source following such publisher's request. Most publishers, however, want to be included in Google News because they believe it is beneficial to them and their readers.
Cease and desist order
On 5 September 2006 the President of the Civil Court of First Instance in Brussels, acting on a cease and desist order based on section 87 of the Belgian Act of 30 June 1994 on copyright and neighbouring rights and on the Belgian Database Protection Act of 31 August 1998, decided that Google could not validly take recourse to any lawful exception under this legislation, and found that Google News and the Google cache were infringing. It should however be noted that Google was not represented at the court hearings and that it was thus decided against by default.
The President ordered Google to remove all proprietary material from the Belgian newspapers from Google News and Google’s “cache” within 10 days of the notification of his decision, under penalty of a fine of €1 million per day of delay. He also ordered Google to publish the full judgment on the homepages of its websites “google.be” and “news.google.be” for a continuous period of 5 days within 10 days of the notification of his decision, under penalty of a fine of €500.000 per day of delay.
Reacting to the decision Google’s spokesperson argued that it had not been properly informed about the existence of the court proceedings and that the publication of the decision was rendered unnecessary because of the massive media attention the case had attracted worldwide. A few weeks after the decision, Google has finally complied with the removal of the infringing content from its search engine and Google News site and with the publication of the decision on its Belgian websites.
However Google has filed an opposition against judgment by default of 5 September 2006 as part of a wider attempt to challenge and overturn the merits of this decision, worried that it might set a precedent which could impinge on its role as a content aggregator and the online advertising sold on the back of it.
The opposition proceedings before the President of Civil Court of First Instance in Brussels will probably be dealt with by the end of November 2006.
Further to its action against Google, Copiepresse hopes that its actions against Google will set a precedent that will mean that subsequent cases can be settled more easily. It is currently negotiating with Microsoft's MSN and Yahoo!. However the Dutch-language newspapers in Belgium, represented by the association Reprocopy, have not filed a lawsuit, since they were able to negotiate with Google to have their articles removed from the Google News site.
The decision of 5 September 2006 is however confusing because it mixes up Google’s roles as a general search engine provider and as news aggregator in the Google News portal, both in its analysis and its findings. The decision could constitute a dangerous precedent, because it assumes search engines should explicitly ask permission from any publisher or website to cache content, ignoring the well-established practice on the web of robots.txt and robot metatags (nocache, noarchive).
In an attempt to avoid copyright infringement and to protect search engines from future litigation at the same time, the international associations of (newspaper) publishers are currently envisaging implementing an Automated Content Access Protocol (ACAP) - a technology for granting permissions – that will facilitate greater access to copyright protected published content to anyone wishing to use it, including search engine providers.