Google in Tussle for Digital Rights

A Belgian ruling sets the stage for a battle between publishers and the search giant over who sets the rules for posting copyrighted content

Google's news search has been grabbing lots of headlines of late, but for all the wrong reasons. In early September, a Belgian court ruled that the search giant could not reproduce certain copyrighted titles and summaries on its Belgian Google News or Web site, throwing into question the entire concept of online news aggregation, and even search indexing.

Google (GOOG) says it has asked the court to reconsider the case, which was brought by Copiepresse, a Brussels-based copyright group that represents French- and German-language publications in Belgium, including Le Soir and La Dernière Heure.

The Belgian case could easily be dismissed as a minor incident in a small European market. After all, Google faces much bigger copyright headaches elsewhere, most notably in its tussle with publishers and authors over the scanning and digital reproduction of books (see, 6/1/06, "Google Fumbles Offline").

But Belgium is "a chink in the armor," says copyright attorney Lee Carl Bromberg, a partner with Bromberg & Sunstein in Boston, who is not involved in the litigation.

Bromberg thinks the case is "a serious problem" for Google, which has always relied on indexing Web pages and online content for free under so-called fair use provisions. Google has taken a "somewhat aggressive approach on copyright," he adds. In the future, Bromberg says, Google may need to make "an acknowledgement of the copyright and perhaps some sort of payment for the usage."


Indeed, if the Belgian ruling is upheld, or if similar cases are filed and won in other jurisdictions, it could have far-reaching implications for the future of all content aggregators, not just Google. "If I were a press body and wanted to stop [content aggregation], I would tout this decision," says Matthew Harris, a partner at Norton Rose, a firm of solicitors in London.

No question, portals and search engines funnel huge amounts of traffic to editorial Web sites. But there's growing concern among publishers that they're getting eyeballs but little or no revenue from news aggregators. At worst, their material is being expropriated and reproduced outright, with no return whatsoever to the copyright owner.

"We have to find a new relationship between publishers and aggregators because today aggregators get content without permission and don't participate in the value creation process," says François le Hodey, chief executive of Brussels-based publisher IPM, which puts out La Libre Belgique and other publications and is represented by Copiepresse. "They can use the content of publishers to build their own brand."


Of course, Google News doesn't reproduce entire articles. Rather, it posts snippets of news from thousands of publications and includes links to the full stories on the originator's site. But the Belgian papers allege that even Google's use of headlines and story summaries violates copyright law. "Google should recognize that it has to deal with content providers responsibly," says le Hodey.

Not surprisingly, Google says it observes "fair use" practices and that copyright law allows for snippets of text to be published. What's more, any publisher not wanting to be indexed in Google News can opt out, or use a tool called robots.txt, a widely accepted standard that allows publishers to block items from being indexed.

"We get more publishers asking to be included in the index than asking to be removed," says D.J. Collins, Google's head of corporate communications for Britain, Ireland, and Benelux.


Still, Belgian papers aren't the only ones who have taken issue with Google's model.

Agence France-Presse filed a suit last year seeking copyright infringement damages after Google put photos and story summaries from the French newswire on its news search page. The case is still pending, but Google has dropped AFP content in the interim.

To some observers, it's baffling that publishers would want to forfeit such a critical driver of Web traffic. "I don't see a stampede" to shut off aggregators, says Howard Finberg, director of Interactive Learning at the Poynter Institute, a training center for journalists. After all, publishers have the ability to exclude themselves from search, Finberg notes. And "most site editors are watching their traffic and seeing where it's coming from," he adds.

That's part of the problem, says le Hodey. "Everybody fears not being in Google because they fear they will lose traffic," he argues. Since the Belgian court decision went into effect and Google dropped IPM publications, traffic to the company's sites has dropped about 15%, le Hodey concedes. Yet that only strengthens his sense that Google should be checked before it gets even more powerful. The point is to avoid a situation where "there are one or two actors in the world who can impose rules on others."


That's why he is supporting a proposal by a global group of publishers to create a new kind of "digital-rights management" technology for editorial content. The group, represented by the Paris-based World Association of Newspapers, is proposing a set of sophisticated software "tags" readable by search engines' Web crawlers that would automatically tell aggregators under what terms they can use editorial content.

The proposed system, known as ACAP (Automated Content Access Protocol) will be unveiled Oct. 6 at the Frankfurt Book Fair and officially launched by the end of this year. It will allow publishers to "maintain more control of their material," says Angela Mills Wade, executive director of the European Publishers Council, which is participating in the project.

Google said in a statement that it welcomes "any initiative that enables search engines and publishers to work together more closely" but noted that it favors a solution based on the existing robots.txt technology, rather than a new approach such as the one put forward by the publishers' group.


In any event, the scheme is unlikely to go far enough to resolve the divide between the publishers and aggregators, says Jody Tsigraides, of Lawdit Solicitors, a British law firm specializing in commercial law and intellectual property. "The battle of fair-use versus owners' rights will continue without an obvious resolution—it will take a big decision to set a precedent."

In the meantime, publishers looking to make a quick buck by filing copyright infringement suits against Google or another aggregator may be out of luck, says Norton Rose's Harris. Copyright laws aren't harmonized across the EU. For example, the concept of what constitutes "fair use"—usually sufficient acknowledgment of authorship—is more elastic in some countries than in others.

And even in places where copyright laws tilt in favor of publishers, courts could see Google News as no different from a library's card catalog. But for the moment, the focus is on a little case in Belgium that could turn into a big challenge for the world's biggest search engine.

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