A German publisher has failed in its first attempt to stop Google scanning its books and publishing excerpts from them on the internet.
The scientific publisher Wissenschaftliche Buchgesellschaft (WBG), which was backed by the German publishers’ association, withdrew its petition for a preliminary injunction after being advised to do so by the copyright chamber of the regional court of Hamburg during a hearing on 28 June.
Google is working with six libraries in the US and in Oxford to build up a digital library of books and place their contents in its search engine. Since 2004, it has scanned millions of books without the explicit approval of the rightholders. It is possible to search the whole content of those books on the internet (eg at www.print.google.com) but the search results only provide bibliographic data plus a few short sentences of, at most, three pages (so-called "snippets").
WBG claimed that the scanning of entire books and the digital publication of the snippets infringed the copyright in the books as the whole book was available for public search. Google’s first response was to challenge the applicable law. It said that the country in which it copied a book rather than the country of the book’s publisher should dictate which copyright law applied. Thus books scanned from US libraries on US soil were subject to US copyright laws even though the publisher may be based in another country. Google also argued that the display of snippets from a copyright work does not infringe the German copyright in the work.
During the course of the hearing, the copyright chamber of the regional court of Hamburg indicated that it agreed with Google that WBG’s petition for a preliminary injunction was unlikely to succeed. Regarding the scanning of the books, the court had already declined competence on the ground that the place of the alleged infringing act was the US. However, it said that in its opinion the scanning of whole pages of books for the purpose of public utilisation was an infringement of copyright. As to the publication of the snippets, the court saw no infringement of copyright as the content of a published short excerpt on its own is not protected by copyright. Also, the court was not able to piece together a whole book out of the snippet search results.
Therefore, the judge recommended WBG to withdraw its petition. WBG is now considering whether to initiate proceedings in the main action as it has already done in the US and France.
This article is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts at Linklaters.