Search engines have raised an amount of legal issues surrounding copyright. Since search engines do not own a majority of the content they show, but mostly provide access to the content of third parties, the most common concerns are the reproduction of copyright protected works and the making available to the public thereof. Apart from the standard website search, specialised search functions like Infopaq or Google Image Search have also raised some fundamental copyright questions.
In 2010 Google introduced a new function for its search engine, named Instant Preview, which also has the potential to raise certain copyright issues. Besides the title of a website, the URL and a snippet appearing on the search result list, the new feature offers a graphic representation of a given search result, in the form of a small screenshot appearing besides the results. This feature is useful to quickly evaluate the search results.
This kind of feature is not completely new to web search engines. Yahoo search used this kind of feature years ago , and MelZoo.com is a web search engine which inherently used this function from the beginning . Also Bing offers a similar service for some time. Nevertheless, with Google Web search receiving several hundreds of million queries each day, and a worldwide market share of 80 per cent, the introduction of Instant Preview is bound to gain a lot of media attention.
There are some consequences of this function for website operators. The process of search engine optimisation, which is used to improve the rank and visibility of webpages, can be affected by this website preview function. Normally, a user visits the first few search results given for a certain query, with the assumption that the first results are the most fitting for the search topic. SEO is used to improve the rank, for example by adding many additional keywords to a webpage. With the introduction of the website preview, users can now directly check if a webpage meets their demand.
Websites using an extensive optimisation could lose visitors through this service, and ultimately revenues through fewer advertisements. This is likely to raise resistance against this service.
Copyright reasons could be used to obstruct or shut down this kind of function. Judging from the impact of earlier cases of copyright issues surrounding search engines, this website preview function might draw legal actions. This would come as no surprise, as the controversial topics are diverse.
Table of Contents
1 INTRODUCTION
2 BASICS
2.1 Technical framework
2.1.1 Basic function of search engines
2.1.2 Function of a website preview
2.2 Basics of Copyrights and Author’s Rights
2.2.1 Differences and similarities of the two concepts
2.2.2 Territoriality principle of copyright
2.2.3 International treaties
2.2.4 European legislation
3 WORK IN EUROPEAN COPYRIGHT
3.1 Legal provisions defining original work
3.2 The Infopaq Decision
3.3 Requirement of an original work
4 COPYRIGHT PROTECTION OF WEBPAGES
4.1 Technical basics of a webpage
4.2 Copyright protection as a computer program
4.2.1 Definition of computer program
4.2.2 Can a website be defined as a computer program
4.2.3 Graphical interface of a website
4.3 Copyright protection as a literary or artistic work
4.3.1 Website as an original work
4.3.2 Creativity requirement
4.4 Copyright protection as a database
4.4.1 Definition of a database
4.4.2 Website as a database
4.4.3 Website protection under the sui generis right
4.5 Copyright protection of parts of a website
4.5.1 Copyright protection of independent works
4.5.1.1 Copyright protection of texts
4.5.1.2 Copyright protection of images
4.5.1.3 Copyright protection of computer programs
4.5.1.4 Copyright protection of video files
4.5.1.5 Copyright protection of audio files
4.5.2 Effect of works integrated in a website
5 CACHING OF WEBSITES
5.1 Copyright infringement of caching
5.1.1 Infringement in the context of computer programs
5.1.2 Infringement in the context of a literary or artistic work
5.1.3 Infringement in the context of databases
5.2 Cached link
5.2.1 Communication and making available
5.2.2 The public
6 THE WEBSITE PREVIEW
6.1 Creation of the preview
6.1.1 Direct or indirect reproduction
6.1.2 Temporary or permanent reproduction
6.1.3 Reproduction by any means and in any form
6.1.4 Reproduction in whole or in part
6.2 Recall of the website preview
6.2.1 Making available to the public
6.2.2 Downsizing of the preview image
6.2.2.1 Reproduction as smaller image
6.2.2.3 Making available as a smaller image
7 LIMITATIONS AND EXCEPTIONS
7.1 Caching of the website
7.1.1 Exceptions for the reproduction of computer programs
7.1.2 Exceptions for the reproduction of databases
7.1.3 Exceptions for the reproduction of literary or artistic works
7.1.3.1 Article 5 I InfoSoc
7.1.3.2 Article 5 II (c)
7.1.3.3 Article 5 III (c)
7.1.3.4 Article 5 III (d)
7.1.3.5 Further exceptions
7.2 Making available of the website preview
7.3 Implied consent
7.4 Other measures
8 CONCLUSION
Objectives and Research Themes
This thesis examines the legal challenges posed by "Google Instant Preview" under European copyright law, specifically focusing on whether the automatic generation and display of website previews constitute copyright infringement and whether existing exceptions are sufficient to permit such services.
- Legal requirements for copyright protection of websites (as programs, databases, or creative works).
- Copyright implications of search engine crawling and caching processes.
- Evaluation of "making available to the public" in the context of search result snippets and visual previews.
- Analysis of the "Infopaq" decision and its impact on the definition of original works in the EU.
- Assessment of potential limitations and exceptions within European copyright directives.
Excerpt from the Book
4.2.2 Can a website be defined as a computer program
The question is now if the HTML code, which contains instructions for the format of the graphical representation can be considered to be a computer program. National jurisdiction and literature is ambiguous in this matter. The Austrian Supreme Court decided that the underlying file of a website might be protected as a computer program, without giving any justification for that. The German Higher Regional Court in Rostock ruled that a website cannot be protected as a computer program. It stated that the HTML code is not a set of instructions which causes a computer to perform a specific function, but rather that an HTML code is only a way to communicate the desired format of the content, with the aim to make visible the content of a website and communicate the intended screen design.
Keeping in mind the definition of the Explanatory Memorandum to the Computer Program Directive, it is unlikely that a pure HTML based website can be seen as a computer program. The definition required a set of instructions which cause a computer to perform a certain operation. In the context of a website, it is not the HTML tags that instruct a computer to perform a certain function. The tags are just communicating a specific format on how to display the content to a web browser. The actual instructions to the computer are given by the web browser.
This is only true for very simple websites consisting solely of markup language tags. If it is a java-based website or a website based on flash or php, it must be considered a computer program, as these languages are not giving instructions on how to format a website, but can be used to create whole interactive web applications.
Summary of Chapters
1 INTRODUCTION: This chapter introduces the legal controversy surrounding "Google Instant Preview" and outlines the research objective regarding copyright protection in the digital environment.
2 BASICS: This section provides the technical groundwork for how search engines function and outlines the core differences between common law and civil law copyright traditions.
3 WORK IN EUROPEAN COPYRIGHT: This chapter analyzes the definition of an "original work" in EU law, specifically focusing on the implications of the "Infopaq" decision.
4 COPYRIGHT PROTECTION OF WEBPAGES: This chapter explores whether websites can be protected as computer programs, databases, or artistic works, and evaluates the status of individual components like text and images.
5 CACHING OF WEBSITES: This chapter addresses the legal implications of search engine caching and whether these processes constitute copyright infringement.
6 THE WEBSITE PREVIEW: This chapter investigates the legal nature of creating and displaying website preview images, and whether they infringe on the reproduction or communication rights.
7 LIMITATIONS AND EXCEPTIONS: This section critically examines whether existing exceptions in European law, such as temporary reproduction or quotation, offer a defense for search engine activities.
8 CONCLUSION: The final chapter summarizes the findings, arguing that current EU copyright law is too narrow to address the benefits and realities of advanced search engine features like Instant Preview.
Keywords
Copyright Law, European Union, Search Engines, Google Instant Preview, Computer Programs, Databases, Infopaq Decision, Originality, Reproduction Right, Making Available to the Public, Caching, Exceptions and Limitations, Fair Use, Implied Consent, Web Crawler.
Frequently Asked Questions
What is the primary focus of this thesis?
The work focuses on the copyright issues raised by Google's "Instant Preview" function and whether such features are compatible with European copyright directives.
Which central topics are addressed?
It covers the definition of original works, the categorization of websites, the legality of caching, and the scope of copyright exceptions for search engines.
What is the main research question?
The research asks if current European legislation is sufficiently equipped to handle modern search engine technologies or if a new interpretative approach is required.
Which scientific methods are applied?
The author uses a legal-dogmatic analysis, examining European Directives, international treaties, and relevant case law from the European Court of Justice and national courts.
What is covered in the main section of the paper?
The main section moves from the technical basics of search engines to a detailed legal analysis of whether websites and their components deserve copyright protection, leading into a discussion on infringement and potential legal exemptions.
What are the key terms that characterize this work?
Key terms include "original work," "author's own intellectual creation," "reproduction right," "caching," and "implied consent."
How does the Infopaq decision influence the author's argument?
The Infopaq decision is pivotal because it establishes a harmonized definition of "original work" across the EU, emphasizing the "author’s own intellectual creation" standard which the author applies to website design.
Why does the author consider implied consent problematic?
The author argues that while implied consent is a practical solution for search engine functionality, it lacks legal certainty and often conflicts with the requirement for explicit permission in copyright law.
- Citar trabajo
- Andreas Papapostolou (Autor), 2011, Copyright issues surrounding the use of services like Google Instant Preview, Múnich, GRIN Verlag, https://www.grin.com/document/231377
