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Copyright versus search tools?

Copyright versus search tools?



Conference at the Intellectual Property Rights University Center, Helsinki, October 27, 2010

Conference at the Intellectual Property Rights University Center, Helsinki, October 27, 2010



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    Copyright versus search tools? Copyright versus search tools? Presentation Transcript

    • Searching for… implicit licenses online IPR University Center, October 27, 2010 Cédric Manara Associate Professor of Law, EDHEC Business School Affiliate Researcher, IPR University Center <www.cedricmanara.com>
    • [Credits] This research was made possible by a gift from Google Inc. The donator does not fix nor control methodology, findings, results, etc. This presentation is about search tools in general, not about Google in particular 2
    • Wide variety of search tools 3
    • 113 billion searches in July 2009 (+ 41% / 2008) More searches on Google than any other engine: 76.7 billion searches conducted (67.5 % market share) 4
    • How do search tools operate? Crawling 5
    • How do search tools operate? Caching 6
    • How do search tools operate? Inline linking [Forum des Droits sur l‟Internet, Hyperliens : statut juridique, 2003] 7
    • How do search tools operate? robot.txt Disallow: /  robots should not visit any pages on the site Disallow: /thispage/  robots should not visit this page ─It is also possible to “block” one robot in particular, or allow access to one only <noindex>  robots should not index the content of a page 8
    • Search tools are highly important to our (digital) lives dependant on copyright laws 9
    • (C)ontradiction Can the contradiction between • copyright rules • & search tools‟ ways of operating be resolved? 1. The US approach 2. The EU approach 3. How can search tools be protected? 10
    • Out of scope: Indexation of the physical world [1] 11
    • Out of scope: Indexation of the physical world [2] 12
    • 1. US approach US • Field v. Google • Kelly v. Arriba • Perfect 10 v. Amazon & Google („Safe Harbour principles‟ not addressed here) 13
    • Field v. Google (2006) Field complained Google was archiving the content he published online 14
    • Legal issues Does the creation of a cached copy constitute unauthorized copying? When Google displays the cached copy as a result to a user, is it unauthorized distribution? 15
    • No direct infringement The entire process of displaying the search results and then viewing the cached page was a non-volitional act on the part of Google The person who publishes online accepts to be included in search tools index, except if he gives notice of his refusal Note: Field did not allege that the initial creation of a cached copy, as part of its cache database, was infringement 16
    • Fair use? Yes Purpose & character • With the creation of cached copies, Google is increasing access to the work • Google allows access when the original pages cannot be accessed Nature of the copied work • Creative work  Greater access should be allowed Amount and substantiality of copied work • Material was made freely available Effect upon original works value • No evidence that the cached copy had any impact on the potential market for Fields work (no commercial impact + works available for free) 17
    • Kelly v. Arriba (2003) The fair use doctrine permits the use of the thumbnails in the image index Note: Ruling unclear on whether the inline linking or framing processes that displayed Kellys images in the context of Arribas web site were lawful 18
    • Perfect 10 v. Amazon & Google (2007) Inline linking ≠ Material hosting Googles use of thumbnails is fair use, in particular because they are “highly transformative” • Transformation of images from a use of entertainment and artistic expression to one of retrieving information 19
    • Other countries India (?) • “Indian courts would see a reasonably clear transformative character in the act of caching” - Amlan Mohanty, 2010 Canada: fair dealing (??) Australia, Israel (???) 20
    • 2. EU approach Theory • EU copyright principles go against the functioning of search tools Practice • Member States courts diverge in applying them 21
    • Directive 2001/29/EC, Art. 5.1 Temporary acts of reproduction referred to in Article 2, which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable: • (a) a transmission in a network between third parties by an intermediary, or • (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. 22
    • ECJ, Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening 1. An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination; 2. The act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders. 23
    • Quotation? No[screenshot : TechCrunch, Sept. 28, 2008] 24
    • National caselaw Belgium, France, Germany, Italy, Spain (and…?) 25
    • Belgium (2007) CopiePresse v. Google • Storing content in the cache memory is an illegal reproduction • Allowing access to internet users is an illegal display 26
    • France [1] (2008) SAIF v. Google • SAIF is a PRS that represents Doisneau, Henri Cartier-Bresson, William Klein, Yann Arthus-Bertrand, Sebastiao Salgado… Copies were made in the US / were displayed in France Which law applies? Court takes into account the place where the infringement was „generated‟ • Il est manifeste que cette activité, à savoir celle de développeur de moteur de recherches, est l‟activité centrale et première de la société GOOGLE Inc. et que c‟est donc le siège social de la société GOOGLE Inc. qui est l‟endroit où les décisions sont prises et où l‟activité de moteur de recherches est mise en œuvre au sein des locaux de la société GOOGLE Inc. qui doit déterminer la loi applicable au litige Applies the 1976 US Copyright Act  Fair use 27
    • France [2] (2009) H & K, André R. v. Google 28
    • Spain (2008) Pedragosa v. Google 29
    • Pedragosa The Court• Illegal display of • It cannot be denied works of art in Google that Google’s activity results violates the holder’s IP rights• Illegal copies of this content on Google servers 30
    • Ruling Court eventually ruled that Google must not be fined: • There are natural limits to the monopoly conferred by IP rights • The purpose of the use must be taken into account ─Facilitate search for internet users, who will be able to choose what is relevant to their search • No harm to the economic value for the publisher ; instead the search tool contributes to access to the works of art, and thus to their value Case pending before the Spanish supreme court 31
    • Germany (2010) Vorschaubilder complained Google displayed her graphic works as thumbnails Lower instance court decided in Google‟s favor Court of appeals • found that Google was infringing the claimants copyright in her works • … but said the artists claim was an abuse of rights under Article 242 German Civil Code (good faith requirement). BGH ruled Google did not infringe the claimant‟s copyright (I ZR 69/08, April 29, 2010) • the complainant had neither made an express nor an implied legal declaration in which she had agreed to Googles use of her works as preview pictures • However, display of images not unlawful because the search tool could interpret the complainant‟s actions as consent to the display of her works in search results • Content made accessible to search engines without using the available technical possibilities that would have prevented the works from being searched and displayed by search engines 32
    • Objections Law • No rigorous reading of the applicable texts Fact • Of course the complainants did not want to permit use of her works by Google (otherwise they would not have sued!) – [they only sued Google, though] 33
    • Italy (2009 – 20..) FIEG v. Google • Italian country‟s newspapers claim Google won‟t run their content on its search engine unless it also appears on its news pages • Google says it allows companies to opt out of the news service and remain on its search engine 34
    • 3. How can search tools be protected? What did we learn? • Copyright owners have different views ─ Absolute refusal ─ Negotiation on the conditions ─ Indifferent • Judicial responses are diverse ─ Courts sometimes attempt to adjust ─ Abuse of rights ─ (De minimis non curat praetor) • Risks are limited in practice (visibility, costs, C&D) • Law nevertheless forbids search tools operations 35
    • Change the law? Add an exception to the EU legislation? TRIPS Agreement, Art. 13 - Limitations and Exceptions • Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder 36
    • Change the law? Example of Japan Article 47-6 Copying for the purpose of searching for uniform resource locators of information made available for download • A business with the purpose of searching uniform resource locators of information made available for download and displaying the search results in answer to requests from the public may, as far as necessary for such search and display, store and adapt information made available for download on storage media, and may serve automatically in answer to requests from the public a copy of such information relating to the uniform resource locators served, including making the information available for download. • An uniform resource locator is a string of characters, numbers and other code used to distinguish information made available for download. • Search engine businesses include those providing only partial services, but are restricted to those that comply with the standard for collecting, organizing and providing information made available for download laid down by government ordinance. • For information made available for download only after requiring input of an access code identifying the user or other means of restricting the access are applied, the exception applies only if the person who restricted the access gives permission. • The search engine business may also store secondary works in the course of storing or adapting information. • The search engine may display such secondary works in combination with the information made available for download. This is called “records for displaying search results”. • However, if the search engine business knows that the information made available for download regarding records for displaying search results is in violation of copyright, it may not serve automatically in answer to requests from the public such records for displaying search results, nor may it make the records available for download. • In case of information made available for download in foreign countries, this restriction applies if it would violate copyright in case of serving the information in Japan. 37
    • Change the law? Example of India Proposed amendment to the Indian copyright Act Section 52(1), acts not to be infringement of copyright„: • “(i) the transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public; • (ii) such transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy; Provided that if the person responsible has prevented the storage of a copy on a complaint from any person, he may require such person to produce an order from the competent court for the continued prevention of such storage.” 38
    • Change understanding of the facts? What does the search tool use: • copyright, • or the information it conveys? Louis Feraud v. Viewfinder Inc. [US District Court, S.D. New York, Sept. 29, 2005 406 F.Supp.2d 274] • Plaintiffs are correct that “First Amendment protection does not extend to copying the works of others.” … But that is not what has occurred here. Viewfinder has not copied plaintiffs dresses; it has displayed a particular depiction of them 39
    • Change understanding of the legal relationship? Explicit consent v. implicit consent What do people intend to accept when they publish online? Is it neutral to go online? 40
    • Analogies Posters on walls T-shirts in streets  Public spaces Ringtones Letters to editors  Private space Release of a work within a space  consent to the expected effects therein 41
    • Contractual relationship between search tools & publishers? Bing: “Why some results have been removed” • Bing blocks results that are spam or malware. In these cases, well remove a result from the Bing index, but it might appear for some time after we tag it and before its actually removed. Until then you‟re notified that "some results have been removed.” • Bing removes pages with duplicated content from search results. Although duplicated pages arent always removed from the index, only those with the highest ranking are included in results. Google Webmasters Guidelines • Google never accepts money to include or rank sites in our search results, and it costs nothing to appear in our organic search results • Practices that violate our guidelines may result in a negative adjustment of your sites presence in Google, or even the removal of your site from our index 42
    • Disputes (only) give birth to a contract? 43
    • Are there such things as implicit licenses?  Use of robots exclusion protocol instead?  Estoppel? 44
    • Consent or not consent? Web standards  Individual will Individual will  Social needs 45
    • Kiitos!Tack!