At the end of April 2010, the German Federal Court of Justice rendered a landmark judgment regarding the use of so-called “thumbnails” in internet search engines. The judges presided over a case where an artist had uploaded images of her paintings to her website. She did not take any technical measures to prevent search engines from using small images of her paintings as thumbnails on the result pages of the images search. Not surprisingly, Google Image Search indexed the paintings and displayed the respective thumbnails as part of Google’s search results. The artist took Google to court and claimed an infringement of her copyright. She prevailed in the first instance, but upon Google’s appeal, the court of second instance, the Higher Regional Court of Jena, ruled in favour of Google. The competent judges based their appeal verdict on the principle of good faith and the prohibition of abuse of rights. The German Federal Court eventually upheld the decision of the Court of Appeal, but gave a slightly different reasoning by stating that the artist’s conduct formed implicit consent Google could rely on.
In principle, as the judges made clear, the display of copyright material on the Internet forms an act of making available the work to the public within the meaning of Sec. 19a of the German Copyright Act. This provision goes back to Article 3 (1) of the European Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, which had to be implemented into domestic law throughout the entire European Union. Thus, not only in Germany, the display of thumbnails may form a right that is only to be exercised by the copyright owner or under a respective license granted by the rightful owner. However, Google obviously had not obtained such license to use thumbnails of the respective paintings before displaying the artist’s works on its result page.
In such circumstances, the Federal Court ruled that one has to consider the technical means available for protecting one’s own content on the internet. It pointed out that the artist had taken no measures to prevent third parties from indexing the paintings and creating small images thereof. This fact was deemed as adequate consent Google could rely on. In contrast to any transfer of rights or granting of a licence, such consent does not require any intension to act with specific legal effect. What was decisive for the judges was the fact that due to the lack of taking any protective measures the artist gave the impression of being in agreement with third parties using her paintings, at least, in the course of displaying them as thumbnails on a result page of a search engine. In this context, the court explicitly pointed out that the artist could and reasonably had to expect those acts of use which are nowadays apparent and common on the Internet. This includes, inter alia, the use of paintings in the form of thumbnails by image search engines like the one Google maintains. The artist could not prevail with the argument that she did not know exactly which means of use the online image search commonly involves.
Furthermore, the Federal Court held that once the works have been displayed on the Internet without any kind of protection against third parties’ use the copyright owner cannot simply object to any future use as thumbnails by declaring his/her dissent. Rather, it requires “actual contradictive conduct”, i.e. the implementing of effective technical measures that prevent search engines from detecting the respective works. The obligation to take such technical measures was deemed reasonable and not asking too much of the copyright owner. In the case at issue, the artist failed to initiate adequate measures. In particular, the mere removal of the paintings was not sufficient in order to request the search engines to remove the respective thumbnails.
In conclusion, it has to be noted that if one takes the decision to post copyright material on a website one should first consider whether or not third parties should have the factual possibility to copy and use this very material. If that is not the case, adequate technical means of protection should be installed before the website is put online.