Belgian court upholds Google News copyright infringement

On 5 May 2011, the Court of Appeal of Brussels (“Court”) upheld a lower court ruling that had ordered and to remove from their Google News service snippets of articles from French and German language Belgian newspapers. In its decision (unofficial, in French only), the Court confirmed that Google was liable for copyright infringement by (i) copying and making available to the public in its “cache memory” copies of these copyrighted articles and by (ii) reproducing in its “Google News” service titles and relevant excerpts from these articles.

The Court first established that Belgium law, rather than American law, was applicable in accordance with the Berne Convention, on the ground that the infringement was committed and the harm was suffered in Belgium.

The Court then held that the reproduction (i) of whole articles in the cache memory of the Google website and (ii) of relevant portion of these articles in the “Google News” section, had not been authorized by any of the authors and could not benefit from any exceptions to the author’s exclusive rights provided for in the Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. In particular, the Court established that the snippets of the articles reproduced in the Google News section – protected by copyright as long as they were original – could “substitute” or at least exempt the reader from reading the original articles since it gave in a few sentences the main ideas of the article, and therefore harmed a normal exploitation of the work.

The Court also stated that Google could not rely on the safe harbor provisions provided in the ecommerceDirective since (i) its liability resulted from its own practice of selecting and copying excerpt of copyrighted article and not from third party’s content and (ii) Article 21 of the e-commerce Directive would in any case exclude search engines from these safe harbor provisions.

The Court also rejected the application of a “news reporting exception” on the ground that Google provided no commentary on the news, as well as the claiming by the defendant of an “implied license” on the ground that copyright license had to be express and should not become a right to opt out of a particular use. [Béatrice Martinet Farano]