On 13 February 2007, the Brussels Court of First Instance found Google Inc. guilty of copyright violations as a result of its unauthorised reproduction and making available to the public of newspaper content, including full articles, headlines, snippets of text and pictures.

While the full articles were to be found in archives ("cache") of the search engine’s Belgian subsidiary, google.be, the Belgian version of Google News only made available to the public the headlines and some first few sentences of various newspaper articles.

Consequently, the court ordered Google Inc. to remove the infringing materials, the copyright in which was managed by a series of claimants such as Copiepresse scrl (an association of newspaper publishers) and SAJ scrl (an association of journalists).

The court’s decision, which was the result of an appeal by Google Inc. against an earlier default judgment issued against Google Inc., largely confirmed the terms of that earlier default judgment.

Although Google Inc. had few credible arguments to contest the allegation that its reproduction and making available to the public of full newspaper articles in the "cache" archives constituted an infringement of the copyright in those newspaper articles, Google Inc. was able to make a more credible case when it defended itself against those allegations regarding its Google News (Belgian version) activities.

Unlike the full articles stored in google.be’s "cache", Google News merely provided a theme-based listing of the headlines of newspaper articles and the first sentences of those articles. The headline constituted a link to the full article on the newspaper’s website.

Google Inc. argued that (i) the headlines and the snippets of text which were reproduced and made available on the Google News website did not constitute works enjoying copyright protection and (ii) even if the court considered that the headlines and snippets of text did constitute original works in the sense of the Copyright Act, Google Inc. could rely on certain specific exceptions to the copyright holder’s exclusive rights as provided in the Copyright Act.

While the court agreed that some of the newspaper headlines (such as "King visits Sweden" or "Tom Boonen world champion") did not pass the originality threshold to enjoy copyright protection, it was of the opinion that other titles were sufficiently original to enjoy copyright protection. Similarly the court, applying, in my opinion, a rather low threshold for copyright protection, held that the two or three first sentences of a newspaper article could constitute original works worthy of copyright protection.

Although the court took a broad view regarding the type of works that merit copyright protection, it took a rather restrictive view regarding the exceptions to the copyright holders’ exclusive rights as provided in the Copyright Act.

Google Inc. invoked article 21, § 1 of the Copyright Act, which states:

"Citations from a work which has been published in a legitimate way do not infringe upon the copyright if the citations are provided for criticism, review, educational, or scientific purposes and conform with the fair practices of the profession and are justified by the objective pursued. The citations must mention the source and the name of the author."

While the court agreed that the citations were extracted from works which were published in a legitimate way, it did not accept Google’s argument that Google News is a press review capable of satisfying the 'review purpose'.

The specific meaning of the 'review purpose' concept is unclear as the preparatory works of the Act of 22 May 2005 amending the Copyright Act do not shed any light on the meaning of this term. As this is only a recent change, there is currently no case law on this specific topic.

However, in Google Inc.'s case, the court held that to constitute a "review", the collection of works should be more than a mere juxtaposition of headlines without any extra comment whatsoever.

Google Inc has announced that it will appeal the decision of the Brussels Court of first Instance.

It remains to be seen whether the Court of Appeal will take the same broad view regarding the type of works that merit copyright protection and the same restrictive view regarding the exceptions to the copyright holders' exclusive rights.

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