Copyright are being challenged every day. If the development of new technologies enabled instantaneous communication amongst Internet users, it also drives many copyright infringements. Besides one’s behaviour and the fact that they may be ignorant or disrespectful of copyright regulations, many practices question the traditional rules of intellectual property law, and for that Google Images provides for a fine example: after the hyperlinks case, Google Images raises doubts. Wouldn’t the search engine be infringing by allowing us to view thumbnails of images yet protected by copyright?
Fortunately not, the opposite answer would have questioned many IT habits and most importantly would have meant that our rules of copyright per se are not adaptable to the information society. Wisely the judges held thumbnails legal, and all over the world they do not lack imagination as for the reasons.
Thumbnails were first challenged in the United States with the Perfect 10, Inc. v Google, Inc. case. Let’s recall that their fair use exception is much more flexible than our exceptions. By determining on a case-by-case basis, according to a list of four elements, judges determine whether the use of a copyrighted work was fair. First, the thumbnail does not have the same raison d’être as the work to which it redirects; the use is transformative. The importance is not to consume content, but rather to use a miniature illustration as a description and a way to the work. There is thus a functional use of the copyrighted work. Furthermore, it was held that such thumbnails would not have any downward effect on the potential market targeted by Perfect 10.
In France the question was raised from another angle. Exceptions are indeed far from being as developed and adaptable as in jurisdictions with a copyright system. The solution to the problem was found by means of a technical approach to the methods used by Google, in the SAIF v Stés Google France et Google, Inc. case.[i] The judges raised that Google did not create a copy of the work per se, but rather a way to reach it by means of indexation. As linking to another website does not amount to an infringement, the search engine is not wrong.
Nonetheless the use of thumbnails has mostly been deemed legal since 2014.[ii] For the Court of Justice of the European Union, this is an obvious consequence from the InfoSoc Directive: under Article 3, a work shall be communicated to the public either by means of a specific technique that differs from those used before or shall be communicated to a new public. For the purposes of Article 3, a new public need be understood as a public that was not taken into account by the authors of the protected works when they authorised its use by communication to the original public. In the case at hand framing does not amount to a new act of communication. Even better,[iii] it is obvious to any Internet user that the work does not originate from Google, but from another website which Google redirects to. Google does not conceal the origin, nor does it target a new public. Indeed, when a work is made available on the Internet, it must be held that all Internet users are targeted by the first act of communication. Therefore, the Court of Justice does not consider framing as an act of communication, thus there is no infringement of Article 3.
The thumbnails case reveals the challenges that copyright need face in the Information Society. Uses that became habits are not always consistent with copyright law, and judges need find creative way to comprehend such matters.
[i] CA Paris, 26 janvier 2011, RG n° 05/12117.
[ii] BestWater International GmbH v Michael Mebes und Stefan Potsch, C-348/13, EU C 2014 2315.
[iii] SGAE, C-306/5, EU C 2006 764, at 40, 42 ; Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon C-136/09, EU C 2010 151 at 38 ; ITV Broadcasting C-607/11, EU C 2013 147, at 39.