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Friday, 22 September 2017

German Federal Court of Justice rules that GS Media presumption of knowledge does not apply to Google Images

Is Google responsible for the lawfulness of the images displayed through its Images search service?

According to the German Federal Court of Justice (Bundesgerichtshof - BGH), the answer is NO.

In a judgment delivered yesterday (I ZR 11/16 - Preview III) the BGH relied on the decision of the Court of Justice of the European Union (CJEU) in GS Media, C-160/15 [Katposts here] and dismissed the action that the operator of a photography website had brought against Google and its search engine.

Background

The applicant’s website includes a restricted (password-protected) area to which customers can only access upon payment of a fee. Once there, customers are able to download the photographs placed in this area to their computers.

Some of these photographs were re-uploaded unlawfully by customers onto freely accessible websites. Relevant thumbnails were subsequently indexed on Google Images from such freely accessible sites.

According to the applicant, by indexing and displaying thumbnails of the photographs to which it owns the copyright, Google had infringed its own exclusive right of communication to the public pursuant to § 15(2) UrhG [the German Copyright Act, by which this Member State transposed Article 3(1) of the InfoSocDirective into its own national law].

The BGH held that Google had not infringed the applicant’s copyrights for displaying thumbnails of and links to photographs publicly available on the internet without the applicant’s consent.

Visual map on linking after GS Media, available here
GS Media and the presumption of knowledge for profit-making operators

As mentioned, to reach this conclusion the BGH relied on the CJEU decision in GS Media, according to which the posting of a link to a freely accessible website on which a copyright work is available without the permission of the relevant rightholder falls within the scope of Article 3(1) of the InfoSoc Directive if the link provider knew or could reasonably know that the content linked to had been made available without the rightholder’s consent.

The BGH also recalled that in GS Media the CJEU had stressed the importance of the internet to freedom of expression and of information, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterized by the availability of immense amounts of information [para 45 of GS Media].

However, in GS Media, the CJEU also stated that if the link provider operates for profit [as is the case of a search engine like Google], then

“it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” [para 51 of GS Media]

So?

According to the BGH this presumption does NOT apply to search engines and for links displayed by search engines because of the particular importance of search services for the functioning of the internet. According to the German court, the provider of a search function cannot be expected to check the lawfulness of the images automatically retrieved from publicly accessible websites.

Google Image Search for IPKat
Conclusion

The BGH’s take on GS Media is an interesting one, and it will be important to read the full text of the judgment once it becomes available.

It appears that the German court’s decision was justified by concerns relating to the possible disruptive effects that a strict application of CJEU case law would have on the broader functioning of the internet. In this sense, the decision echoes the tones used – way more vigorously than what the CJEU judgment does – by Advocate General (AG) Wathelet in his Opinion in GS Media [here]. The AG rejected the very idea that linking should fall within the scope of copyright protection at all. Holding otherwise “would significantly impair the functioning of the Internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter’.” [para 77 of the AG Opinion].

This said, it does not appear that – after GS Media – CJEU jurisprudence on the right of communication to the public has become less stringent: the decisions in Filmspeler [here] and Ziggo [here] are telling instances.

Finally, with particular regard to the issue of image search engines, readers might remember that last year France adopted a law (LOI n° 2016-925 du 7 juillet 2016 relative à la liberté de la création, à l'architecture et au patrimoine) [this is the version currently in force] that would require search engines displaying thumbnails of copyright works to be part of a compulsory collective management system for the reproduction of photographs and images [here and here].

After France and Germany (and amidst all activity and activism of the CJEU) it will be crucial to see how legislatures and courts - both around the EU and at the EU level - will position themselves in relation to online issues.

7 comments:

Simon Stokes said...

Very interesting! Linking is one thing but what about Google creating thumbnails? The US courts have looked at this some time ago and applied fair yse to allow it - Kelly v Arriba Soft. Would a defence linked to Art 5(1) InfoSoc Directive apply? Don't think it would?

Eleonora Rosati said...

I was indeed surprised that the point of reproduction was not addressed in the press release - I look forward to reading the full judgment, and see whether the BGH tackled it. Note however that the press release seems to assimilate thumbnails to links for the sake of copyright treatment ...

Mirko Brüß said...

The FCJ has already dealt with the reproductions that are made by Google for the thumbnails. The decisions are I ZR 69/08 and I ZR 140/10.

I find them rather unconvincing because the FCJ did come to the conclusion that Google makes reproductions that normally require the consent of the respective right owner. However, the FCJ assumed a "silent" consent by the right owners because the images were not protected (technically) against being indexed by search engines. In the second decision I mentioned, the FCJ even applied this reasoning to a case where the thumbnails were created from images that were online without the right owner's consent. To justify this, the FCJ pointed out that the same images where available elsewhere on the internet with the owner's consent.

Anonymous said...

This is a fair decision.

GS Media et al have been over interpreted by the over enthusiastic, forgetting that the CJEU tends to focus on facts which leaves their judgments open to intepretation and application with different outcomes.

THE US anon said...

"According to the BGH this presumption does NOT apply to search engines and for links displayed by search engines because of the particular importance of search services for the functioning of the internet"

A chaebol effect for the Giant Moneyed Google....

And let's be clear: this statement is NOT a presentation of a Fair Use exception.

Georg Nolte said...

Reproduction was not covered because (a) defendant was AOL not Google and AOL only had only embedded Google's search results. Thus no reproductions by AOL (b) Google does not store thumbnails on German territory (cf BGH - thumbnails I and II).

Eleonora Rosati said...

Thanks so much for the clarification Georg!

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