On Sep. 21, 2017 the German Federal Court of Justice (Bundesgerichtshof, FCJ) ruled that the displaying of thumbnails in search results does not qualify as public reproduction (öffentliche Wiedergabe) as laid down in Sec. 19a Copyright Act (Urhebergesetz).
The FCJ’s judgment is based on case law from the Court of Justice of the European Union (CJEU). In the “Svensson” decision, the CJEU ruled that the posting of a hyperlink is not a copyright relevant act (urheberrechtsrelevante Handlung). Later, the CJEU expanded on this premise in the “GS Media” decision and held that it is essential whether or not the person setting the link knew or should have known that the linked content was made available without prior consent of the copyright owner. Such knowledge shall be refutably presumed (widerleglich vermutet) if the relevant link was posted with the aim to generate profits, i.e., with a commercial intent.
Against this background, the FCJ ruled that such presumption of full knowledge, does not apply to search engines and any hyperlinks which are posted on search engines. According to the FCJ’s press release, the theory of a refutable presumption (widerlegliche Vermutung) is incompatible with the importance of search engines for the functionality of the internet. Thus, the providers of search engines cannot be expected to examine whether the thumbnails – which can be found by the search engines by automated means – were legally posted on the internet in the first place. The FCJ’s full rationale is not yet available, thus it remains to be seen how the court justified why it did not present the case for a ruling to the CJEU.