Less than two weeks after Attorney-General Robert McLelland flagged the expansion of Australia’s safe-harbour protections to include user-generated content distributors such as Google and Yahoo!,[1] a Paris appeals court has found that Google infringed the copyrights of three documentary producers and an unidentified photographer, despite the availability of a similar ‘mere conduit’ defence under the European Directive on Electronic Commerce.[2] Australia’s safe harbour and Europe’s mere conduit defences both serve to limit copyright claims against network operators who unknowingly transmit or host infringing content.

Agence-France Presse, which broke the story after obtaining the court documents in early March,[3] reports that co-defendants Google France and Google Inc. were found to have infringed the copyright in several documentaries by including links to infringing material in Google search results, as well as by hosting copies of the documentaries on its Google Video service. Although the plaintiffs first reported the infringements directly to Google, and the company responded by removing the offending videos and links, the filmmakers alleged that the content had been subsequently re-uploaded by Google’s users.

The plaintiffs argued that once Google had acted on an initial copyright infringement notification, it had a positive obligation to continue monitoring its services to ensure that similar content was not re-uploaded. Google did not agree, claiming such an obligation was both contrary to the European Directive on Electronic Commerce as well as technically ‘unfeasible’.[4]

Google’s European copyright headache

This decision is the latest in a string of copyright battles the internet giant has faced in Europe. Since 2008, Google’s YouTube service has been the subject of largely unsuccessful, multi-billion dollar copyright claims by Italy’s MediaSet, France’s TF1 and Spain’s Telecinco. Meanwhile, Germany’s Federal Court last year found that the Google Image Search service did not infringe copyright by caching ‘thumbnail’ previews of artistic works and displaying them to users in the results of an image search.[5]

Copiepresse appeal underway

Google’s biggest upcoming challenge, however is its ongoing appeal against a landmark Belgian decision in 2007[6] that declared its Google News service violated local copyright law and ordered damages of €25,000 (AUD $42,000) for each day that Google News continued to link to Belgian newspaper articles. The decision forced Google to remove all articles, photos and links to Belgian newspapers from its news aggregation service.

The appeal against the Copiepresse decision, which may be referred to the EU Court of Justice, will have wide implications for content aggregators and search engines in Europe, where no defence of ‘fair use’ or ‘fair dealing’ is available.[7]

The hearing resumes in May and we will keep you updated with further developments.