News aggregators and copyright - from litigation to agreement? : an example of Google News

Abstract

At the moment, no copyright statute refers to news aggregation. It is not surprising then that news aggregators present a challenge for any court having to deal with any aspect of their activity. Indeed, with any particular form of aggregation there are a number of competing interests at play: the copyright holder, the aggregator, the reader and the public at large. So far, there were only two suits against Google Inc. based on copyright infringement concerns from Google News, one in the US and one in Europe, but they revealed a lot of problems that existing copyright law may have with news aggregators. The first claim (brought in 2005 in the United States) where the claimant Agence France Press claimed that Google Inc. was reproducing and publicly displaying AFP’s photographs, headlines, and story leads on Google’s news aggregation website without AFP’s permission, resulted in a settlement (after 2 years in court). But the case brought against Google in Europe in 2006 by Copiepresse (the collective management organization for Belgian newspaper publishers in French and German languages) found that Google had infringed copyright law. Interestingly, after the court door was broken down, a new practice regarding Google News appeared: in Germany, France and Belgium leading newspaper publishers had called on their governments to adopt a law to force internet search engines like Google to pay for displaying their content on services such as Google News. Consequently, agreements with Belgian and French governments were concluded by Google. In Germany, a new law passed granting news publishers a new neighbouring right pushing Google to pay a licensing fee even for the snippets of content used to display search results (in force as of 1st of August 2013). The main issue both courts and legislators have to address when dealing with Google News is the question whether short fragments of news works along with their headlines and titles (so-called snippets) are protected by copyright or not. This touches one of the basic concepts of copyright law, i.e. copyright originality, not understood identically within copyright jurisdictions over the world, and challenged additionally, at least in the EU, with recent decision of the ECJ in Infopaq where the court found that a fragment of news article consisting of 11 words may be protected as an independent work. The impact of the Infopaq ruling should not be underestimated: even in the UK, where short forms of creative activity like titles or headlines, have not been traditionally protected under copyright, a recent ruling in NLA v. Meltwater concluded that news headlines may be copyrighted. Assuming that Google News is involved in acts of exploitation of copyrighted works, the other important question arises that is whether any limitation / exception provided by copyright law is applicable to this service. What can come into play in this regard are (1) the exception of quotation, (2) the exception for report on news events, and (3) the fair use defences.