The Brussels Court of Appeal has upheld the decision of the Brussels Court of First Instance that Google’s cache and news service infringe copyright (Google v. Copiepresse, 5 May 2011).
Google cache
The Google cache operates by storing copies of webpages on Google’s servers and allowing users to access those websites without going directly to the website in question. The Court of Appeal confirmed that allowing copyright protected works to be reproduced from, or communicated to the public via the use of, “cache” memory without the copyright holder’s consent infringed copyright in breach of Article 1 of the Act of 30 June 1994 relating to copyrights and related rights (“Copyright Act”). The Court dismissed Google’s defence that these activities were temporary acts of reproduction which were transitory and part of a technical process and thus not infringing (as provided for in Article 21, § 3 of the Copyright Act (implementing Article 5(1) Copyright in the Information Society Directive)).
The Court emphasised that Google’s use of “cache” memory to store extracts of copyright works needed to be distinguished from the normal services of a search engine which only link to existing websites in their current version.
Google news
The Court also confirmed that Google could not validly reproduce and communicate titles and extracts from copyright-protected works in its “Google news” service without the prior permission of the authors of those works. Finally, Google could not benefit from the exceptions to infringement of quotation of a work for criticism or review or for reporting news (under Article 21, § 1 and Article 22, § 1 respectively of the Copyright Act).
Thus specialised search engines which index press articles available on the Internet should avoid reproducing extracts of copyright works without the permission of the right holder and should limit themselves to providing hyperlinks to newspaper websites. This is similar to the position in the UK (see IP News, January 2011 - Headline news).
Territorial issues
One of the more interesting aspects of the judgment is that the injunctive order applies to the google.be and google.com websites, but only to the extent such websites are accessed from Belgium. This restriction was introduced to reflect the country of origin principle under Article 5 (4) of the Berne Convention.
Google still has the option of commencing proceedings before the Court of Cassation. The parties are also involved in damages proceedings, in which close to €50 million is at stake.
By Tanguy Van Overstraeten, Pieter Van Den Broecke and Tom De Coster, Brussels
