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
www.Upload-IT.com , 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
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
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