Google in Tussle for Digital Rights

A Belgian ruling sets the stage for a battle between publishers and the search giant over who sets the rules for posting copyrighted content

by Kate Norton

Google's news search has been grabbing lots of headlines of late, but for all the wrong reasons. In early September, a Belgian court ruled that the search giant could not reproduce certain copyrighted titles and summaries on its Belgian Google News or Google.be Web site, throwing into question the entire concept of online news aggregation, and even search indexing.

Google (GOOG) says it has asked the court to reconsider the case, which was brought by Copiepresse, a Brussels-based copyright group that represents French- and German-language publications in Belgium, including Le Soir and La Dernière Heure.

The Belgian case could easily be dismissed as a minor incident in a small European market. After all, Google faces much bigger copyright headaches elsewhere, most notably in its tussle with publishers and authors over the scanning and digital reproduction of books (see BusinessWeek.com, 6/1/06, "Google Fumbles Offline").

But Belgium is "a chink in the armor," says copyright attorney Lee Carl Bromberg, a partner with Bromberg & Sunstein in Boston, who is not involved in the litigation.

Bromberg thinks the case is "a serious problem" for Google, which has always relied on indexing Web pages and online content for free under so-called fair use provisions. Google has taken a "somewhat aggressive approach on copyright," he adds. In the future, Bromberg says, Google may need to make "an acknowledgement of the copyright and perhaps some sort of payment for the usage."

SOUNDS FAMILIAR.

Indeed, if the Belgian ruling is upheld, or if similar cases are filed and won in other jurisdictions, it could have far-reaching implications for the future of all content aggregators, not just Google. "If I were a press body and wanted to stop [content aggregation], I would tout this decision," says Matthew Harris, a partner at Norton Rose, a firm of solicitors in London.

No question, portals and search engines funnel huge amounts of traffic to editorial Web sites. But there's growing concern among publishers that they're getting eyeballs but little or no revenue from news aggregators. At worst, their material is being expropriated and reproduced outright, with no return whatsoever to the copyright owner.

"We have to find a new relationship between publishers and aggregators because today aggregators get content without permission and don't participate in the value creation process," says François le Hodey, chief executive of Brussels-based publisher IPM, which puts out La Libre Belgique and other publications and is represented by Copiepresse. "They can use the content of publishers to build their own brand."

LETTER OF THE LAW.

Of course, Google News doesn't reproduce entire articles. Rather, it posts snippets of news from thousands of publications and includes links to the full stories on the originator's site. But the Belgian papers allege that even Google's use of headlines and story summaries violates copyright law. "Google should recognize that it has to deal with content providers responsibly," says le Hodey.

Not surprisingly, Google says it observes "fair use" practices and that copyright law allows for snippets of text to be published. What's more, any publisher not wanting to be indexed in Google News can opt out, or use a tool called robots.txt, a widely accepted standard that allows publishers to block items from being indexed.

"We get more publishers asking to be included in the index than asking to be removed," says D.J. Collins, Google's head of corporate communications for Britain, Ireland, and Benelux.

NO STAMPEDE.

Still, Belgian papers aren't the only ones who have taken issue with Google's model.