The German Federal Supreme Court has ruled that Google could use and display a thumbnail preview of a picture taken from an artist's web site, because she had not sent a signal to say that she objected to this. Search engines like Google scour the web for material to include in their search results but will not index the material if the source web site contains code that disallows permission to use it. Google said that since she had not included code that disallowed permission, she had effectively consented to Google's use of the image in a small form for search purposes. The German court agreed. Google has previously won other cases in the US that allowed for this practice.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of , comments: 'English courts have not yet ruled on this issue. Although a case like this from Germany or the US will not bind English courts, it may be seen as persuasive. It is an open issue whether search engines' use of material on web sites is free for them to use for search engine purposes. Copyright arises automatically without a web site operator having to do anything to protect it, and there would ordinarily be no automatic licence for anyone wishing to use copyright material. However, it seems that courts are willing to imply a licence to enable search engines to use web site material in order to facilitate the working of the world wide web.

'If there is a licence, it can be revoked by the copyright owner, but it is unclear how far the copyright owner would need to go in order to revoke that licence – for example, would it be sufficient for the prohibition to be in clause 39 in the web site terms of use which could be found on the site, or would it be too onerous to expect search engines to have to pay attention to and read all those documents on the web? The issue largely does not arise, because many web site operators are more than happy for Google to take snippets from their sites in order to drive traffic there.'

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