|February 24, 2014|
Previously published on January 2014
As internet use grows, with more and more information available, so does the rate of copyright infringement. There are the obvious - and much talked about - cases of piracy in the music or film industry. But fingers are pointed at other practices too, some concerning the automated action of search engines. The king among them, Google, has been involved of late in skirmishes generating their share of publicity. It is interesting to see how the issues raised in these instances would be treated under Czech law.
The usefulness and necessity of internet search engines is beyond dispute. They play a fundamental role in our everyday life by ensuring access to information. Yet, there is no specific legal framework governing them in the Czech Republic. The most relevant provisions are found in Act no. 480/2004 Coll., on certain information society services (the “ISS Act”), implementing the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the “Directive”).
Intermediary service providers
The Directive provides for exceptions to the liability of intermediary service providers when acting as a mere conduit (i.e. when they exercise no control over information transiting through their systems but could nonetheless be liable if copyright legislation were strictly applied), or with respect to certain practices such as caching or hosting. The ISS Act implementing the Directive thus contains a number of exceptions limiting liability of intermediary service providers.
Though one could be tempted to assimilate search engines - especially those that provide related services such as Google News - to intermediary service providers within the meaning of the above legislation, thus enabling them to rely on an exception, this view has not prevailed everywhere in the EU. In a widely commented decision of May 2011, the Court of Appeal of Brussels concluded, in the case of Copiepresse SCRL et al. v. Google Inc. (“Copiepresse”), that Google’s caching practice and news service had infringed the claimants’ intellectual property rights.
Google’s caching practice works as follows: an intelligent robot takes a snapshot of each page inventoried on a given day and stores them on the company servers. The search engine thereafter uses the cached version to determine if a page is relevant to any particular query. Further, Google includes in the search results, in addition to a link to the current version of the web page, a link to the cached version (i.e. to the copy of the page stored on its server when Google last visited it). This means that a page that has subsequently been withdrawn from publication or deleted may remain available.
Google News (news.google.com) is a news aggregator service that compiles lists of news items published on thousands of news websites. The information made available includes the title of the article, the name of the news service, the date of publication, a short excerpt (first two or three lines) and a link to the original text.
In Copiepresse, the court concluded that Google’s caching practice amounted to copying and communicating to the pubic within the meaning of Belgian law, and rejected Google’s argument that it should be covered by the temporary reproduction exception, since the cached copy did not meet the requirements to be qualified as “transient”.
With respect to the news service, the court determined that Google had reproduced and communicated to the pubic sections of works protected by copyright without authorization. The court specifically dismissed Google’s claim that it should benefit from the quotation and/or the news reporting exceptions.
Czech copyright legislation
The applicable copyright law in the Czech Republic is Act no. 121/2000 Sb. on copyright (the “Copyright Act”). A Czech court would likely conclude that Google’s caching practice - which goes beyond “automatic, intermediate and temporary storage” - and its news service amount to the use of an author’s work (as defined in Section 12) by way of communication to the public within the meaning of Section 18. Communication of a work to the public signifies making it available to the public by enabling access to whomever, wherever and whenever (especially by computer or similar network).
Further, Google’s practice of reproducing a web page’s content and storing it on its servers, followed by indexation and public access to it, would likely amount to the use of an author’s work by way of its copying. Under Section 14 of the Copyright Act, the “use of a work by way of its copying” means the creation of temporary or permanent, direct or indirect copies of a work (or a part thereof) by any method and in any form.
In light of the above, the operator of a search engine (e.g. Google) would have to obtain a licence from the author of the work to use it (by way of its copying and/or communication to the public). The Copyright Act contains some exceptions in the form of statutory licences for certain limited uses, such as the creation of temporary copies, the quotation of excerpts or the reporting of news. We would expect, as was the case in Copiepresse, that the Czech courts would conclude that none of these exceptions apply.
As a result of the decision in Copiepresse, Google had to delete all “visible cache links” (i.e. the URL linking to the copy stored on its servers) from search results, and remove articles published by the claimants from its Google News listings. But business interests eventually prevailed: the publishers asked Google to resume indexing (and thus copying and communicating) their articles to ensure that they remained available in search results (though not in Google News). The publishers probably realized that removing the infringing copies from the number one search engine would likely reduce the number of hits and hence the income derived from them.
There is no definitive answer to the question of whether search engines and related services (such as Google News) infringe on copyright. In Copiepresse, the court said yes. Some legislators have adopted a similar view. An amendment to the German copyright act was passed in March 2013 (nicknamed “Lex Google” because of its targeting of the search engine) aimed at news services, and stipulating that search engines and press news aggregators should pay a licence fee to publishers to reproduce their news stories, though they were allowed to include short descriptions in the search results (so-called “snippets”) without a fee. In August, Google changed the policy regarding Google News in Germany from one of “opt-out” to one of “opt-in”.
Meanwhile in France, publishers were demanding licence fees from Google to publish their articles. The case was settled earlier in 2013 with Google paying EUR 60 million into a fund to support French publishers’ digital initiatives. In return, Google does not have to pay licence fees to the publishers for linking to their articles. The agreement suggests that Google had serious concerns as to the way French courts would lean.
It will be interesting to see where these and similar cases - which exemplify how technology has exacerbated the tensions between freedom of information and safeguard of individual rights - lead us, and how our conception of copyright protection may change along the way.