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“Copyright law allows for snippets to be published from results,” Google spokesman D-J Collins told OUT-LAW. “That’s why we have argued that the court order was flawed. Google News does not break copyright law.”

Copiepresse disagrees with Google’s view that snippets of text are unprotected. Copyright only protects against substantial copying; but publishers would argue that a snippet can be substantial in a qualitative sense, just as courts will protect short samples from songs. Google takes each story’s headline – the craft of a subeditor; and sometimes the entire first sentence or more from the intro – the most labour-intensive part of a journalist’s writing. The legality has never been fully resolved.

The publishers might also argue that thousands of snippets in aggregate amount to substantial copying in a quantitative sense. Google might counter that it is taking only one

snippet of each copyright work – i.e. its thousands of snippets are from thousands of works, not one work.

The Belgian court found that Google had also infringed database laws. The EU’s Database Directive says that the repeated and systematic extraction of insubstantial parts of a database can amount to infringement of a database right.

Some courts have characterised websites as databases and ruled against sites that aggregate content. But that was before controversial rulings by the European Court of Justice in 2004 over the use of horseracing and football fixtures data.

The upshot: many databases are only protected if the owners do not ‘create’ their own data but obtain the data from others.

Google told OUT-LAW that it does not believe that Google News breaks this database law. It did not elaborate, but might argue that a newspaper’s site is not a protected database because the database right does not cover the investment in creating the news; it would only cover the obtaining of news from others. It might say that there is no systematic extraction of a single database; it is systematic extraction from lots of databases. But publishers could argue that news stories are not the same as raw facts such as when two football teams will play each other; and that their websites are not a mere byproduct of investment, unlike the databases in the fixtures cases.

WAN and other publisher groups will watch the rematch between Copiepresse and Google with interest. A week after the September ruling they identified the strategy that they had been seeking since January: the Automated Content Access Protocol, or ACAP.

A briefing paper was sent to OUT-LAW. It describes a system very similar to the robots exclusion standard: “a standardised way of describing the permissions which apply to a website or webpage so that it can be decoded by a dumb machine without the help of an expensive lawyer.”

Angela Mills, executive director of the European Publishers’ Council, told OUT-LAW: “This isn’t about blocking content, it’s about enabling it but with more sophisticated rules than are currently possible. Right now we can say ‘don’t index’ – but that’s not sophisticated enough. It’s very boring to have the choice of yes or no.”

ACAP might say that text can be taken but not images; or that images can be taken on condition that the photographer’s name appears. Demanding payment for indexing might also be part of the protocol, said Mills.

The plan is for ACAP to be a voluntary system. “If people wanted to ignore the rights expression they could,” Mills said, “but that obviously puts them in a much weaker position if challenged in court.”

When asked what it thought of ACAP, Google’s Collins told OUT-LAW, “We welcome any initiative that en

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

ables search engines and publishers to work together more closely. We look forward to discussing this proposal with the WAN and in particular how it can build on robots.txt”. But asked if Google would pay publishers to index their content, Collins replied, “That’s not something we do.”

This feature originally appeared in Issue 15 of OUT-LAW Magazine. If you don't already receive the 16-page Magazine, you can get a free subscription.

5 things you didn’t know about cloud backup

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