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Neither Green Nor Red...
Justitia Sculpture, Dublin Castle, City Hall @ akg images / Michael Teller
BySylvie FodorNeither green nor red, but blinking lights for search engines in Europe displaying thumbnail images. Thumbnails are reproductions. But does it mean that their display by a search engine constitute an infringing act?
- As reported on this site, the Supreme Court in SWEDEN recently ruled that to publish little pictures as small as thumbnails or stamps without the copyright owner’s permission is illegal.
Ruling of the Supreme Court in SWEDEN
- In GERMANY, photographer Michael Bernhard won a case against GOOGLE in 2008. The Hamburg court not only ruled that thumbnails were reproductions but that displaying them without the rightsholder's consent was an infringing act. The case is in appeal.
- However, the most recent ruling of the Bundesgerichthof (German Supreme Court), on 29 April 2010, has come to a decision which is clearly in favour of GOOGLE and its opt-out procedures.
In summation, what the Court says is that there is an implied consent of the copyright owner that his/her pictures be shown by search engines. He/ she has always the ability to make use of the technological tools, i.e the robot txt. allowing to remove an image from Google Search. Google has NO responsibility.
Ruling of the Bundesgerichtshof/ German Supreme Court in German
Press Release summarizing the ruling (in German)
What GOOGLE says about the case (in English)
The decision of the German Supreme Court is technology friendly. It is not user friendly. Google Search becomes a mere opt-out facility, leaving it to the users/ website owners to protect their assets! Not to speak of copyright owners who say yes by not saying no, or simply because they happen not to master the Internet as well as their arts. Is it fair ? Would the Court have come to the same decision if personality rights and not copyright had been at stake ?
- In FRANCE, the situation is uncertain too. On 20 May 2008, the collecting society SAIF, representing a number of photographers, lost against Google France and Inc. The Court decided that not French law was applicable but American law, i.e fair use.
Ruling of the Paris court in FRANCE (in French)
The case is in appeal. A decision is expected in November this year. Some observers say the decision is “a unique piece in French jurisprudence” which is likely to be overturned.
Juriscome, authoritative legal review in France, comments (in English)
But the truth is, nobody can say with certainty what the decision of the appeal court will be ...
As Tom Morgan writes in his excellent blog: "At last someone has come up with a way of monetizing content on the web ...The problem is that the content which Google is monetizing does not belong to Google."
Wait and see until the next law suit follows.
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