In a decision that will be poured over by news aggregators around the globe, the Court of Appeal in Brussels has upheld a 2007 ruling that blocked Google from publishing snippets from Belgian newspapers on its Google News service.
The original suit was filed by the association of Belgian newspaper publishers, Copiepresse, which is also running a second legal action seeking compensation from Google for the period the newspapers’ content was visible on Google News. In essence, the dispute is over whether Google should be able to derive economic benefit from the content without payment.
Copiepresse commenced court proceedings against Google in 2006, asserting that Google News went beyond a simple search engine service and acted as a “portal to the written press” (Graham Smith, Bird & Bird, Lexology, March 13 2007). Copiepresse objected to the display on Google News of the titles and first sentence or two of its members’ newspaper articles, as well as the provision of links to ‘cached’ versions of the articles (HTML text copies of articles stored by Google). Copiepresse did not object to the provision of hyperlinks to its members’ sites.
• Original expression: Google argued that the fragments displayed on Google News were not original elements qualifying for copyright protection. The court found that some of the headlines were original enough to warrant copyright protection, while others were not.
• News reporting exception: Google argued that in any event it could rely on Belgium’s exceptions to copyright infringement for news reporting. The court found that as Google provided no commentary on the news, the exception did not apply because reproduction could not be the principal object, rather than the secondary, in news reporting. 
• Implied licence: Google argued that the newspapers had explicitly or implicitly consented to the use of their materials by not using technical means (robots.txt files and metatags) to stop their publications being indexed by search engines. The court rejected this argument on the grounds that copyright is a right to prior authorisation, not a right to opt out of a particular use.
In 2007 the court ruled that Google had violated Belgian copyright laws and ordered the corporation to pay a daily fine until it removed the Belgian news content (which it did). Copiepress also sought damages for the infringements.
To read more about this story go to: http://www.copyright.org.au/news-and-policy/details/id/1952/.
To read more about news aggregation and copyright, see the Australian Copyright Council’s feature story from November 2010: http://www.copyright.org.au/news-and-policy/details/id/1872/.
For inquiries relating to publishing and copyright law please contact Adam Simpson.