Google appeal falls flat in European copyright case

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On 5 May 2011 the Belgian Court of Appeal in Brussels upheld a 2007 ruling of the Belgian Court of First Instance that had prevented Google from publishing links to Belgian, French and German language local newspapers on the Google News aggregator service for violation of copyright laws.

This decision is the latest instalment in proceedings that began in 2006 when Copiepresse, a management company designed for Belgian, French and German speaking daily press publishers to defend the copyright of its members and to supervise the use by third parties of the protected work of its members, commenced proceedings in the Court of First Instance against Google. They claimed that the news aggregator embedded in the Google platform was more than a mere search engine service since it acted as a ‘portal to the written press’. Copiepresse objected to the manner in which article titles and the opening sentences of the articles of member newspapers appeared on the Google News search result distanced from the member’s own websites.

The judge declared the claim admissible and well founded ordering that Google:

• withdraw from all its sites, the articles, photographs and graphic representations published by the Belgian daily press represented by the company Copiepresse within 10 days from the notification of the ruling under penalty of a fine of €1 million (US $1.4 million) per day of delay; and
• clearly and without comment on its part publish the entirety of the judgment for 5 days within 10 days from the date of the notification of the ruling under penalty of a fine of €500 000 per day of delay on the ‘google.be’ and ‘news.google.be’ home page.

In the 2007 hearing Google appealed the initial decision before an appellate body at the Court of First Instance in Brussels with the resulting judgment affirming the decision that Google must remove the content from its site. At the time, the court said that Google may not claim any exception as stipulated in copyright law and related rights. Further, the court said that the activities of Google News (i.e. the reproduction and communication to the public of the titles of articles and the short extracts from articles) and the use of the Google “cache” (i.e. the registration accessible to the public of the so-called “cache” memory of articles and documents) breach copyright law.

However the Court of Appeals reduced the daily fines that Google was required to pay for not removing the newspapers' content from its service, from US $1.4 million per day to $33,543 per day.

This latest decision upholds those aspects of the 2006 and 2007 judgments which ban Google from publishing certain Belgian newspaper material. The decision may be of concern for Google and potentially for other search engine and news aggregation services in that it may form a basis for future legal action and impact on their activities in a broader range of markets.

At this stage Google is considered likely to appeal the decision to Belgium’s highest court, the Cour de Cassation.

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