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GOOGLE and CEPIC

Aug 19. 2010
09:08
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ByTom MorganAt last someone has come up with a way of monetizing content on the web.

Google, as ever, has found a way forward, their ubiquitous search engine delivering billions of pair of eyeballs, daily, matching user behavior to content-type. The problem is that the content which Google is monetizing does not belong to Google.

Google displays images in a grid on their Image Search pages. In order to do so, they have to remove the images from their originally published context. They are also selling advertising on these pages (quite clearly commercial activity). This all raises a number of interesting questions, not least around the legal issues that:

  • the images are being used without the rights-holders’ consent, infringing the rights of consent potentially of many, for example the creator, professional models and private individuals
  • revenues are being generated through this activity and are not being shared with the rights-holders, infringing their economic rights – the right to remuneration.

What attitude should one take to this, and what action should be taken individually or collectively, as professionals in the image business and representatives of the rights of others? The decisions are not simple and the legal points are perhaps clearer than the policy issues.

Under UK law putting copyrighted content online is “communication to the public”, a ‘new’ right that was added as part of the 2003 Copyright and Related Rights Regulations (SI 2003/2498) to sections 16(1)(d) and 20 of the CDPA 1988. Google would certainly appear to be in breach of this. There is not much case law, as yet, but according to Bernard Horrocks, Copyright Officer at the National Portrait Gallery, London, a leading authority appears to be the ECJ case C-306/05 Sociedad General de Autores y Editores de Espana (SGAE) v Rafael Hoteles SA [2006] ECR 1-11519 mentioned in this link: http://www.twobirds.com/German/NEWS/ARTICLES/Seiten/Twentieth_Century_Fo....

In UK law, there is a lot of well-established practice around ‘fair dealing’ (very different from the ‘fair use’ provisions in USA law) – a defence which allows, for example, literary quotations to be used without the requirement of prior consent or the application of economic rights (i.e. you are allowed to use short quotes without having to ask or to pay, although you are expected to attribute the quotes). This argument is available, to an extent, in defence of the content communicated through search engines. However, it brings to mind an excellent point made by Jo Cave, in her former role as CEO of the UK collecting society DACS, in a public debate with Amazon over their ‘previewing’ of the content of illustrated books. She rightly pointed out that, whereas a preview may show only part of a literary work (actually, within the UK legislation around ‘fair dealing’ the phrase used is ‘an insubstantial part’), by contrast if an illustration (a work of visual art) is shown in a preview, then it is not an ‘insubstantial’ part but actually the whole of that work, even if it is in the context of a written page, and that this therefore does not qualify under ‘fair dealing’ provisions. It would appear that exactly the same arguments would apply to the unauthorized use of images on Google. The association of commercial activity (advertising) with this use would further weaken the claim to a ‘fair dealing’ defence.

So, on the face of it, Google seems to be actively profiting from illegal operations and is vulnerable from a legal angle.

It is worth noting that most Internet Service Providers (‘ISPs’) have been able to evade prosecution by responding promptly to infringement claims by removing IP assets (images, in this case) from their servers, and Google could quite easily prevent their search engines from visiting our sites, if that’s what we want them to do. At the moment, the historical perspective is that copyright and moral rights entail the acquisition of consent BEFORE an act of copying/publishing. It is also true that, in any number of circumstances, consent is acquired AFTER the act of copying/publishing. In huge aggregates of content, for example, libraries and archives, and now the Internet, the practicalities of administering permission and consent mean that, whatever the legalities, administrators are obliged (within reason) to act on an ‘await claim’ basis – i.e. they will do what they need to do until and unless any particular rights-holder is able to challenge them. Google’s ‘opt-out’ model of permissions arguably falls into this category, although the difference is that they are using the images for commercial purposes.

Now, individually or collectively, professionals in the image business are faced with a wide variety of choices as to what they are going to do about it. If your work has been exploited for profit by another, without your consent, you will understandably be vexed. But revenge, as they say, is a dish best served cold, and the tendency to react punitively can obscure the opportunities which other approaches might deliver. The commitment involved in mounting a legal case is huge, and the tactics and the prize to be gained from such sacrifice needs to be carefully appraised. I would argue that there is great value in a collective approach to solving this problem, and that there is a possibility of making major financial and structural gains for our industry, in the process.

Tom Morgan (with thanks to Bernard Horrocks for legal citations)
17 August 2010

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