The Belgian Court of First Instance has backed a lower court ruling that Google’s ‘republishing’ of material from Belgian newspaper publishers in Google News and in its search engine cache, without their express permission is copyright infringement.
“We confirm that the activities of Google News, the reproduction and publication of headlines as well as short extracts, and the use of Google’s cache, the publicly available data storage of articles and documents, violate the law on authors’ rights,” the AP’s article on the ruling quoted the court as saying.
I need to wait for an English version to see exactly what the court said, but on the face of it I am reminded of the the Danish Newsbooster case, of a few years ago, where the court gave the the publisher the right to prevent or control unauthorised access to, or re-distribution of, its website content. It saw the content of the publishers website as a ‘collection of independent works, data or other materials arranged in a systematic or methodical way or individually accessible by electronic or other means’. What this meant was that linking to any content on the site, without the express permission of the website owner, would be illegal, whether technical measures were in place to prevent it or not.
That court was guided by Article 7(5) of the EU Database Directive, which prohibits the ‘repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with normal use of the database or which unreasonably prejudice the legitimate interests of the maker of the database’.
I am not sure in this case that the Court got beyond copyright law, which should have made the thought processes closer to the German Paperboy case. In that case, the judge found that deep linking to articles did not infringe copyright as they did not constitute an act of reproduction, but merely facilitated quick access to material already available on the internet by technical means.
It also stated that Paperboy clearly identified the content’s source, and the links to articles were neither a significant portion of the work, nor did they affect the market value of the articles as in fact they drove more readers to the material than may otherwise have seen it. If the publishers didn’t want people linking to their material the court suggested they introduce technical measures to prevent them (eg subscription or registration),
Sound familiar? Both Paperboy and Newsbooster were similar to Google News. And as in those cases Belgian newspaper publishers association, Copiepresse, argued that by bypassing site front pages the Google News service caused newspaper sites to lose ad revenue.
Let’s take one of the publication complaining. L’echo . Now if I click on any random story from their home page such as this . Wait, what’s that I see before me, ah, yes, LOTS OF ADS. How about La Libre , and an item that seems appropriate as it is talking about YouTube, – Yep, once again, we are away from the homepage and we have Lots more ads. I doubt there is a newspaper/news site on the entire web anymore that doesn’t have ads on EVERY page of their site.
Don’t be fooled this case, and the others that have been started, they are not about anything other than Money – not lost ad money, not copyright infringement money, but publishers looking for money from licensing deals with Google, to allow Google to have their news in Google News.
Copiepresse are obviously confident that Google will pony up some money for their content. If I was Google (AND Yahoo and MSN who face similar suits from the Belgian Group) I would just continue to block access to their content. If they believe that they can make more money not getting any traffic being directed from the 3 major search engines and their news services – good luck to them, I say. This of course won’t happen as shown by comment from both sides
“There’s no animosity,” said Philippe Nothomb, head of legal affairs of Rossel et Cie., which owns Belgium’s most-read French daily, Le Soir. “We just don’t want a win-lose situation.”
“There is a real complementarity between these services” Google’s Elkaim said. “This judgment doesn’t stop us negotiating.”
Google plan to appeal.