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Copyright FAIL: Belgian appeals court says 'Non'

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A Belgian appeals court has upheld an earlier ruling that Google infringes on newspapers' copyright when its services display and link to content from newspaper websites, according to press reports.

The search engine giant is responsible for infringing the copyrights of the papers when it links to the sites or copies sections of stories on its Google News service, the Belgian Court of Appeals said (41-page/1.19MB PDF), according to a report in PC World.

Google must not link to material from Belgian newspapers, the court said, according to the report (in French). No translation of the ruling is yet available.

Google faces a fine of roughly €25,000 for every day it fails to comply with the court judgment, the report said. The ruling does not apply to Flemish newspapers.

Copiepresse, an agency acting for newspapers, sued Google on behalf of the newspapers in 2006, alleging that Google's services infringed the papers' copyright. The newspapers argued that they were losing online subscriptions and advertising revenue because Google was posting free snippets of the stories and links to the full article on Google News.

Google's search engine offers links to the websites it indexes but also to "cached" copies of those pages. The copies are stored on Google's own servers.

A Belgian judge ruled that Google had to remove all the content referring to Belgian newspaper stories from its services. That ruling was upheld at the Court of First Instance in Belgium in February 2007. Google had argued that its use came under a fair use exemption, but the court disagreed. Google appealed the decision, but the Belgian Court of Appeals has backed the earlier ruling.

"The Court rejects ... that such reproductions constituted quotes or accounts [of] news reports," a Copiepresse press release said (2-page/67KB PDF) according to an automated translation.

Copiepresse said the ruling rejected an argument that newspapers should have to "opt out" of being indexed by Google. "Only prior authorisation of reproduction is legally valid," the press release said.

Copiepress had not been found responsible for breaching Google's rights, and that the company had simply defended its copyrights, Copiepresse said.

Google said how it linked to external content complied with copyright laws.

"We believe that Google News is fully consistent with applicable copyright laws," Google spokesman Mark Jones told Dutch computing website Webwereld according to an automated translation.

"Referral is the common practice of search engines, Google News and just about everyone on the internet. We remain committed to work with publishers, and continue to seek new ways to generate revenue for the online distribution of news," Jones said.

Google removed all articles from the Belgian newspaper websites from Google News in 2007 but later restarted linking to the websites.

In 2008 Copiepresse said that Google's alleged infringements had cost its members up to €49m and asked the courts to force Google to pay that amount in damages.

"Google's business model, and that of some other search engines, relies on being allowed to exploit the 'fair use' exemptions within copyright laws. The exemptions allow people to reproduce some copyrightable content for the purpose of commentary. In the US, the company has been successful in arguing 'fair use', but in Europe the terms of copyright law governing 'fair use' are much narrower," Kim Walker, media law expert at Pinsent Masons, the law firm behind OUT-LAW, said.

"Copiepresse argues that Google has offered the public free access to paid-for content that would otherwise cost users money to look at. Google is going to have to find a technical solution to avoid storing information from the Belgian newspaper websites," Walker said.

"The complaints made by Copiepresse are rare because most online businesses deem the traffic they get from Google to be beneficial to the number of visitors they receive and the kind of revenues they can build from visitor numbers," Walker said.

Copyright © 2011, OUT-LAW.com

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

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