Recent Belgian litigation over Google’s use of copyright news reports poses an interesting question for national and local media organisations in this country.

Would English media organisations also have an arguable copyright claim against Google if similar proceedings were brought in England?

Google is facing a damages claim in Belgium for up to €49 million (about £39m) after alleged systematic breaches of copyright on its Google News aggregation service there.

The claim follows a Belgian court ruling last year in favour of Copiepresse, a group representing Belgian newspaper publishers, that Google News infringed the copyright of its members’ online news content.

Google has appealed the ruling and says the damages claim is “groundless”.

Google News works by sending out a ‘robot’ programme, called Googlebot, to crawl across the internet capturing news content. An entire copy of a news story is copied to Google’s easy-access cache.

Search results include excerpts from others’ copyright news reports. From top stories in the nationals, headlines, snippets of text and thumbnail photographs are often copied.

As to the regionals, a quick look at the Google News UK site on June 16, 2008, also revealed copyright headlines from local papers such as the Chester Evening Leader, Harborough Mail, and Bexhill Observer.

In any English litigation, the first question would be whether Google News copies the “whole or any substantial part” of others’ copyright material without permission. Unless the answer is “Yes”, there is no copyright infringement under English law.

It’s debatable whether a headline alone is a “substantial part” but a headline with text and a photograph may well be.

The next question would be: Does Google have a defence of “fair dealing”? In English law, “fair dealing” with a copyright work (except a photograph) for the purpose of reporting current events does not infringe any copyright provided it is accompanied by sufficient acknowledgement.

Additional issues arise. Is Google’s dealing “fair”? Factors here would include whether Google News takes commercial advantage from the copying and whether it benefits copyright owners by referring more web traffic to them.

Another consideration would be whether Google could realistically argue its copying is for the purpose of reporting current events, as opposed to merely for providing access to others’ reports.

Google might also argue it has a defence of implied consent. Websites can easily stop Googlebot gaining access to their content by deploying a file called ‘robot.txt’. They can also stop unauthorised caching by using a ‘NOARCHIVE’ command.

If they don’t take these steps, it’s arguable their consent can be implied.

All the internet search giants use robot technology to collate others’ content so an English court might be persuaded that consent to Googlebot’s raids must be implied where websites don’t take simple steps to exclude it.

Damages would be assessed by either an account of Google’s profits from any unauthorised copying or an assessment of any loss suffered by the copyright owners. Infringement deemed “flagrant” could result in ‘additional damages’. An injunction could also be sought.

When one takes into account Google’s right to freedom of expression and the utilitarian value of disseminating news and information, the merits of each side’s arguments in any Copiepresse-style litigation under English law would be finely balanced.

One thing is certain. Any English litigation is bound to be hard-fought, costly and appealed. But there are genuine copyright issues raised by Google News’ operation.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]

Comments

Ken Bowers (17/06/2008 06:31:09)
When the press choose to respect the right to privaacy of the public then, and only then, have they grounds for attempting to protect their own right to privacy.
Google do a fine job in summarising points of intertest in the papers