15 December 2006
Key Points:
The way that Google News caches material permanently is not allowed under Australian law.
Belgian news publishers have won the first round against Google News for copyright infringement.
Google News provides a news aggregation service, which groups articles from different news-sites together in relation to the same news item. The Google News page displays an automatically generated snippet of the news item from one of the news-sites, accompanied by hyperlinks to articles on different news-sites on that same topic.
For example:
The Fish lands on solid ground
The Australian - 3 hours ago. 20 year old swimmer, Duncan Fisher, has successfully completed a gruelling, non-stop swim around Sydney Harbour, and was met by cheering fans at Manly Wharf earlier this morning.
Fisher completes his swim Sydney Morning Herald
Fisher in fastest swim around Sydney The Age
Our Fisher makes it home in record time Manly Daily
all 35 news articles
Why aren't the publishers happy about appearing on Google News? Two reasons:
Copiepresse, the publishers' association that brought the representative action, sought an injunction against Google for breach of copyright, identifying the publishers loss as not only the decrease in advertising and archive sourcing revenue, but also the consequential decline in the quality of articles produced by journalists as the decrease in revenue would mean that the publishers would no longer have the resources to pay their journalists properly.
Interestingly, unlike previous litigation against news aggregation websites, which were framing the other news sites and advertising on their site, Google News acknowledges the source of the article and does not advertise on its Google News site.
Nevertheless, the court was persuaded by Copiepresse's arguments (although Google was not present at the hearing to argue its side of the story), and held that Google's conduct constituted copyright infringement, and that it did not fall into any of the exceptions provided under the relevant copyright law - although it did not go into any detail on the point.
Google News was ordered to remove the articles, photographs and graphic representations of the Belgian publishers from all of Google's websites within 10 days, and publish the judgment in full on its website for five days - or face hefty monetary penalties if it failed to comply.
What has been the reaction to the decision?
The general response from the media is that the action taken by Copiepresse was excessive and is likely to do news services more harm than good, as they rely on Google to drive traffic to their sites. A number of commentators have also observed that if these publishers did not want their site to be indexed by Google they could have very easily included in their metatags "robot.txt", which tells the search engine crawlers not to index the page, and is respected by most reputable search engines. Indeed the Google Webmaster Help Center provides detailed information as to how to remove entire websites/parts of websites/snippets/cached pages/outdated links from Google's index.
Interestingly, Copiepresse has reportedly indicated that it will drop the case if Google agrees to some sort of protocol for its indexing of news sites. Publishing organisations have joined forces to develop such a protocol, called the Automated Content Access Protocol, which was launched on Friday 6 October at the Frankfurt Book Fair. The ACAP is a more sophisticated version of existing protocols which will allow content providers to systematically grant more complex permission information to crawlers than is currently available under existing protocols (eg. "robot.txt"), thereby allowing publishers to have greater control over the content of their sites that search engines index and display.
The Australian position
What would be the position in Australia if Australian publishers decided that appearing on http://news.google.com.au was doing more harm than good to their sales? Google News may encounter similar difficulties in persuading a court that its activities fell under any of the exceptions to the exclusive right of reproduction enjoyed by copyright owners. Following the decision in Universal Music Australia Pty Ltd v Cooper [2005] FCA 972, it is likely that the deep linking to other news sites would amount to more than "mere facilitation of infringing conduct", such that infringement would be established.
Further, while caching can be an exception, it can only be so if it is a temporary reproduction of the work, which is incidentally made as a necessary part of a technical process of using a copy of the work. The exception expressly does not apply to any subsequent use of a temporary reproduction of a work other than as a part of the technical process in which the temporary reproduction was made. In Google's case the caching is not a temporary reproduction, as the cached copy is stored on the Google server for subsequent use. The extension of this exception made by the Copyright Amendment Act 2006 only extends to active caching for educational purposes.
Was the decision right?
Google has challenged the decision as it was not present at the hearing, and the matter was heard again on 24 November 2006, with a judgment to be delivered early next year. Before the hearing Google had already managed to reach a settlement with two of the five groups being represented by Copiepresse.
The outcome will be very telling for Google News, as it is already facing similar litigation by French publishers, with potential for disputes to spread, as Google News sources articles from 4,500 English language news sources worldwide!
For further information, please contact Mary Still.
