Germany’s Supreme Court backs Google over thumbnail images
Germany’s Federal Court of Justice has backed search engine Google in a dispute over whether the use of thumbnail images constitutes copyright infringement.
The applicant in the dispute operates a website that offers photographs.
Although users must pay a fee to have an account and download images, image searches can be run for free by inserting search terms into a search engine (Google).
Small images (“thumbnails”) are displayed in the search results and, in June 2009, when certain names were searched, thumbnail images of models were displayed.
The Google image search engine had displayed the thumbnails from freely accessible web pages.
According to a press release from the court, the applicant claimed that it had acquired the exclusive rights to use the photos and had placed them in the password-protected area of its website, but customers had downloaded the images from behind the paywall and published them online illegally.
The applicant argued that it was owed damages for copyright infringement from Google.
But the Federal Court of Justice disagreed on September 21, finding that Google had not infringed copyright by reproducing the thumbnails.
Felix Hilgert, senior associate at Osborne Clarke, said: “Like the preceding Thumbnail decisions, it feels like the court was desperately looking for rudiments of a fair use principle in German copyright law, to avoid effectively banning image search functionalities.”
However, according to Hilgert, the ruling is slightly at odds with the Court of Justice of the European Union (CJEU) decision in GS Media v Sanoma Media.
In GS Media, the court held that posting a hyperlink to unauthorised copyright works is not a communication to the public, as long as the person who posts the link doesn’t seek financial gain and doesn’t know that the works have been published illegally.
The CJEU added that when hyperlinks are posted for profit, the person who posted the link should carry out the necessary checks to ensure that the work is not published illegally.
“In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’,” it said.
The Federal Court of Justice held that the presumption was not valid for search engines and for links to a search engine because of the “particular importance of internet search services for the functionality of the internet”.
It added that a search engine cannot be expected to check whether the images found in its automated procedure have been posted legally.
“After all, image search providers also derive profits from their service. These cases illustrate a need for reform in European copyright law to adapt it to the realities of the digital age,” concluded Hilgert.
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