This article on ‘Online Copyright Infringement & Liability of Search Engines‘ was written by Jagrati an intern at Legal Upanishad.
In this day and age, one cannot even think of a life without the internet which has extinguished all the barriers to obtaining every kind of information irrespective of any category, level, or affordability. The archaic practice of tedious quest for high-quality books on a particular subject in libraries or the inability to even find good material has been resolved via our one-mouse click-away technology.
This accessibility and connectivity to different kinds of content online have been primarily facilitated by search engines which helps a user sift through the infinite traffic on the internet comprised of billions of websites and users and find materials that are relevant to the thing searched. Hence, the search engines not only ensure a free flow of the Internet but also provide for systematic availability of information to the web user in a matter of a few seconds.
Similarly, the creators of such content which include artists, craftsmen, software developers, and others for whom there was a dearth of platforms where they can outpour their creativity and get acclaimed, got a feasible option that was accessible without any cost for production, cross-border viewers and easy upload methods. However, the perks of the search engines came at a heavy cost for the creators and innovators for the sophistication of the search engines making it hands-down for even a layman to imitate, copy, steal and misuse someone’s creation. This has led to a variety of civil suits against such online intermediaries including search engines for hosting or copying the copyrighted work.
Hence, worldwide technology and internet inclusive laws are being passed and judicially approved which protect the copyrighted work from being used against the exclusive rights of the copyrighted creation owner. In this article, this new approach to copyright law will be elucidated.
What is a Search Engine?
According to the Oxford Dictionary, “a search engine is a computer program that searches the internet for information, especially by looking for documents containing a particular word or group of words.
It is also defined as a service with which searching for content through the World Wide Web (WWW) is permitted. This is done by entering the keywords or key phrases into the search engine which provides the user with the relevant online content comprising of websites, images, videos, etc., in a catalogue format.
Meaning of Copyright
The word ‘copyright’ refers to the legal right over the creation reproduced through intellectual and unique means by the creator or owner or any person/entity which has been permitted to access and use the creation. It is the right to copy the original work which has been exclusively limited to the use of the owner/creator or anyone it has been authorised to use.
Section 14 of the Copyright Act, 1957 defines the word ‘copyright’- as “the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof”. Under Indian law, this right has been extended to literary, dramatic, or musical work, computer programs, artistic work, cinematographic work, and sound recording.
Case Laws concerning online copyright infringement
There have been various cases where the search engines have been fined as contributory copyright infringers along with the user who copied the copyrighted work. In Le Hotels Méridien v. Google France (2004), the French court held the search-engine Google liable for Trademark infringement since the plaintiff proved that Google played a contributory role in encouraging the advertisers to infringe registered trademarks.
Now many copyright cases are being made directly against these intermediaries.
In Perfect 10 v. Google Inc., [508 F.3d 1146 (9th Cor. 2007)], the plaintiff had filed a case for a preliminary injunction against Google from creating and showcasing thumbnail versions of the plaintiff’s copyrighted photos in Google’s image search results. The California Federal Court applied the ‘Server Test’ to determine whether Google had displayed the full-size copyrighted images.
The court held that since the full-size images appear only by in-line linking and hence, the image had not been stored by Google, it was held that there was no display of images. Further, the court held that Google only provided the audience for violative websites, and promoting them does not come within the purview of secondary or contributory infringement. However, the court still found that using ‘thumbnail’ images is not likely appropriate and can be considered infringing copyright.
However, the partial win of the plaintiffs was soon overturned by the 9th Circuit District Court in Perfect 10 Inc. V Amazon .com (487 F. 3d 701 (9th Cir, 2007)), where the court found that providing HTML instructions to advertise or display the copyrighted images cannot be considered a direct infringement of copyright of the plaintiff.
In an Indian case, Super Cassettes Industries Ltd. V Yahoo Inc. & Anr [CS (OS) No. 1124 of 2008 (Delhi HC)], the plaintiff who is the owner of the respected Indian music company T-Series had filed for a permanent injunction against Yahoo’s portal video.yahoo.com for their unauthorised streaming of plaintiff’s copyrighted works. The court held the decision in the plaintiff’s favour by observing that T-Series is recognised for its repertoire of cinematographic films and sound recordings to the tune of over 20,000 Hindi film and non-film songs and around 50,000 songs in regional languages to its credit.
Hence, the Delhi High Court passed the permanent injunction order against Yahoo from reproducing, adapting, distributing, or transmitting in any manner on their website, `www.video.yahoo.com’ or otherwise infringing in any manner, the cinematograph films, sound recordings, and/or the underlying literary or musical works of the plaintiff, in which the plaintiff claims copyright, without obtaining an appropriate license from the plaintiff.
Reasons for holding search engines liable
There are two broad justifications for holding search engines liable for copyright infringement:
Recognising the source is not difficult: The structure and algorithm of a search engine are based on the sophisticated collection of web pages and other materials which makes it extremely effortless to locate a certain material. Hence, providing such wide accessibility to a large number of audiences without any filter can prove to be fallacious which in this case is access to copyright work. Hence, the search engines must not dodge their responsibility under the garb of ignorance or helplessness.
Great target to sue: Since the user of a search engine who had used the copyrighted work may not be financially affluent or possess the big bucks, whereas the search engines are multi-billion-dollar businesses that make significant money per search, it is rather prudent and advisable to sue these multi-national companies who are in a perfect position to compensate the owners of copyrighted work.
For this, different methods have been approved by the courts like vicarious liability (where the party has made a direct profit from the copyrighted work or is in a position to manage and regulate the infringement) or contributory liability (where the party has knowingly contributed to the illegal copyright infringement by another party). Even direct liability can also be used for search engines where the plaintiff proves that the search engine had violated one of the exclusive rights of the copyright owner like unlicensed imitation incurs direct liability.
The hiatus between law and technology is pretty wide i.e., the speed with which technology advances makes it difficult for the law to catch up. Hence, even though search engines have made our lives easier, due to the lagging in formulating statutes governing the search engines or the related online intermediaries has resulted in serious ramifications one of which is copyright infringement.
A famous quote relevant to the protection of copyright works on online platforms has been given by James Grady: “There’s no reason to throw out copyrights just because you’re on the Internet, Deal with it.” This quote diligently signifies that defending these multi-national search-engine companies based on ignorance or helplessness over the display or possession of copyrighted work makes it even harder for original creators to maintain the authenticity or exclusivity of their intellectual work.
In the era of fading online privacy and acceleration in data theft where these online intermediaries are majorly responsible for their irresponsible attitude towards data protection which in certain cases has even been deliberate, it is only logical to make them responsible for the content they host online.
- Abhishek Kumar Pandey, “Online Copyright Infringement & Liability of Search Engines”, Legal Service India [Online] Available from: http://www.legalservicesindia.com/article/97/Online-Copyright-Infringement-&-Liability-of-Search-Engines.html (Accessed July 11, 2022).
- Will Kenton, “Copyright Definition”, Investopedia, March 27, 2022 [Online] Available from: https://www.investopedia.com/terms/c/copyright.asp (Accessed July 11, 2022).
- Vatsalya Vishal and Aditya Sharma, “Into the Crosshairs – The Liability of Online Intermediaries in Case of Copyright Infringement”, NULJ, 89 (2018) (Accessed July 12, 2022).
- Akanksha Badika and Pragya Mishra, “Assimilating Intermediary Liability Regimes in Copyright Infringement”, 2.1, VSLR, 74 (2020) (Accessed July 12, 2022).
- Nihir Ranjan Das, “Search engines and copyright: a fair use defence”, iPleaders, March 13, 2021 [Online] Available from: https://blog.ipleaders.in/search-engines-copyright-fair-use-defense/ (Accessed July 12, 2022).