Who Said France Does Not Have Fair Use?

Valérie Laure Benabou, a law professor at the University of Versailles and an esteemed expert on French and international copyright law, kindly agreed to share her thoughts on the Google vs. SAIF case decided yesterday by the Paris Court of Appeals:

An important decision of the Paris Court of Appeal was rendered yesterday in a litigation between Google and a French Collective Society for Visual Works (SAIF). The Collective Society claimed that Google was infringing on the copyright of its authors members by reproducing and displaying their works in the form of thumbnails on the pages of Google Image service and also by reproducing their works through Google caching system. Before the Court of First Instance, the Judge considered the applicable law to be the U.S. Copyright Act, and consequently, the court applied the fair use defense in line with the Arriba and Perfect 10 decisions.

The Court of Appeal disagreed and applied French law. Nevertheless, it too rejected plaintiff's claim and decided that Google benefited from the "safe harbor" provisions of the Loi sur la Confiance dans l'Economie Numérique [the relevant French statute]. It considered Google as being a "neutral" actor and the reproduction of the photos necessary to provide the service. It also refused to consider a sort 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 refers automatically (by a robot crawler) to the images residing on the website. It held that the sole 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 also emphasized that website administrators have the means to exclude their pages from the being indexed by the automated process performed by the search engine. The French judges seem to be in line with the opt-out system already enforced lately by the German BGH.

It also stated that the fact that the thumbnail can directly point out to the image file without consulting the webpage is not considered a real control over the online content. Providing such a link does not amount to playing an active role in the meaning of the LCEN. The judge did not take into consideration the fact that Google Image service does not only link to the content but also reproduce the picture at different scales on its own pages and that unlike Youtube, the content is not placed by the rights holders on a specific service platform, but is being searched and selected by Google.

In another paragraph, the judges say that the possibility to store the image 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 a 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, the Court not 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 considers that displaying the 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.

The Court seems to aim at establishing a proportionality test between the restrictions of copyright and the functionality required to obtain a quick research of information. Yet, it clearly made the interests of the search engine prevail over the interests of the rights holders who must therefore "tolerate" the restrictions on their monopoly for Google's sake. It is remarkable that unlike the decision of first instance, the Court of Appeal did not rely on the alleged gratuity of Google services. That is to say, for the French judges, there is no point at sharing the profit of the search engine with the rights holders even if such profit is derived from uses of protected work without their consent.

Had such a position been adopted when the radio, television, cable, satellite (which are also very useful and provide quick information) came up, copyright would have been long dead. Being mostly a copyright lawyer, I sincerely begin to look for new legal fields to investigate...

Professor Valérie Laure Benabou, University of Versailles (and also consultant at Gilles Vercken Law Office that represented the collective society).

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