Thumbnails and copyright infringement

By Valérie Benabou

The Paris Court of Appeal court has recently ruled that the creation and display of thumbnail or miniature images by Google does not infringe copyright.

The Paris Court of Appeal recently delivered an important decision in the case between Google and Société des Auteurs des arts visuels et de l’Image Fixe (SAIF), a French collecting society. The collecting society claimed that Google infringed on the copyright of its members by reproducing and displaying their works, in the form of thumbnails as part of the Google Images service and also through Google’s caching system.

Before the Court of First Instance, the Judge considered the applicable law to be U.S. copyright law, and consequently, applied the fair use defense in line with the U.S. decisions in Arriba and Perfect 10. The Court of Appeal disagreed and held that French copyright laws applied because that was the country in which, according to Article 5.2 of the Berne Convention, copyright protection was sought. Additionally, Google intended French citizens to be able to view the indexed and cached images in France and accordingly it was that country’s laws which applied.

The Court of Appeal rejected the plaintiff’s claim and decided that Google benefited from the “safe harbor” provisions of the Loi sur la Confiance dans l’Economie Numérique [(LCEN), the relevant French statute]. It considered Google as being a “neutral” actor or intermediary and the reproduction of the photos necessary to provide their services. It also refused to consider the possibility of contributory infringement liability when Google refers to works available on the Internet without the consent of the rights holder.

The Court’s decision seems to rely on the fact that Google automatically refers (using a robot crawler) to the images residing on a website. It held that the fact that the search algorithm was conceived by Google does not exclude the neutral character of the reference in the absence of any proof to the contrary. It was also emphasized that website administrators have the means to exclude their pages from being indexed by the automated process performed by the search engine. The French judges’ decision seem to be in line with the opt-out system recently enforced by the German Bundesgerichtshof, or Federal Court of Justice of Germany in the case of I ZR 69/08 – Vorschaubilder, 29 April 2010.

It also stated that the fact that the thumbnail may link directly to the image file without first consulting the webpage in question does not mean having real control over the online content. It appears that providing such a link does not amount to ‘playing an active role’ in relation to any possible infringement, within the meaning of the LCEN. The judge did not take into consideration the fact that the Google Images service not only links to the content but also reproduces the picture at different sizes on its own pages and unlike Youtube, the content is not placed by the rights holders on a specific service platform, but is being searched for and selected by Google.

In another paragraph, the judges stated that the ability to store images in Google’s caching system after it has been removed from its original page has the purpose of rendering the network fluent and that this transient reproduction is justified by the utility of the system, which provides quick circulation of information. The Court indicates that this reproduction must therefore be “tolerated” per se. Consequently the “fluency” of the network appears to be a new exception to copyright, with the Court stopping short of directly quoting the exception for temporary and transient reproduction deriving from the EC 2001 Directive, but ambiguously referring to some of its conditions.

The Court also considered that displaying thumbnails with the website’s URL only responds to the necessary functionality of the specific tool provided by Google and shall not be considered as exceeding the simple technical service corresponding to the exclusive research of indexed images on the Internet.

It would appear that the Court aims to establish a proportionality test between the restrictions of copyright and the functionality required to carry out quick and efficient research on information. However, it has been argued by some that in this case, the interests of the search engine were made to prevail over the interests of the rights holders and perhaps more attention should have been paid to the issue of profit sharing by the search engine with the rights holders.

This decision may also pose significant challenges to situations where traditional conflicts of laws principles are to be applied to copyright cases. The Court found that the copyright liability of a search engine associated with the acts of indexing and caching shall be assessed not by the laws where those acts take place, but by the laws of the location in which damage is done. In essence, the Court held that Google’s acts of indexing and caching files in California are subject to the national copyright laws in each and every country in which Google makes its search service available – which is nearly everywhere on the planet.

About the author

Valérie Benabou
Valérie is a consultant at Gilles Vercken Law Office based in Paris, France. Her main areas of expertise include intellectual property law, information technology law, international and European law and contract law. She is also a professor at the University of Versailles St-Quentin-en-Yvelines and a member of the Superior Council of Literary and Artistic Property (CSPLA). Valérie may be contacted at valerie.benabou[at]usvq.fr.