Copyright infringement occurs when someone uses the whole or a substantial part of a copyright work without permission, and there are no exceptions which apply.
Search engines rely upon web crawlers to gather information, which is then indexed into a database. This database acts as a source of information for search queries made by users. For legal purposes, we can define the terms crawling, indexing, caching and scraping in detail, however for this brief blog post, we will focus on the legal aspects of creating a search engine.
As search engines have not obtained specific permission from a website owner, in some cases, can a search engine be considered to be committing copyright infringement?
Copyright Infringement by search engines
Generally, a website will include and consist of copyright-protected works. These may include literary works such as articles, website copy and HTML code, and artistic works such as photographs and graphic images.
If a third party reproduces the whole or a substantial part of any such works without the permission of the copyright owner, they infringe copyright, unless they can demonstrate that an exception applies to their activities.
Text and data mining (TDM) exception
An exception was introduced by the UK Parliament according to the Section 29A of Copyright, Designs and Patents Act 1988 (CDPA 1988) which outlines that if a copy is made by a person, or entity, who has lawful access to the work to carry out computational analysis for the purpose of research for a non-commercial purpose. If this occurs, then the text and data mining (TDM) exception applies, which is very narrow in its scope. The UK Intellectual Property Office (IPO) has sought an expansion of TDM to include commercial purposes, but it has been met with a stern response.
A search engine could be reproducing substantial part of any copyright works, and without permission from the copyright owner, then this would be considered to be a prima facie case of infringement of copyright under CDPA 1988, s 17. Search engines like Google are very guarded about precisely how their indexing algorithms work.
If a copy of website materials like text or images are made in the course of indexing (even if a temporary copy) then, in the absence of an express or implied licence, there is infringement of copyright.
Case Law involving search engines and copyright infringement
There have been court cases filed against search engines, however not in England and Wales. Two cases of note, which involved the issues with search engines and copyright infringement, are listed as follows.
- Field v Google Inc (US District Court of Nevada) – the District Court decided that Google was entitled to make copies as part of indexing.
- Meltwater News AS v Mediebedriftenes Klareringstjeneste AS (Oslo District Court) – the Oslo District Court decided that Meltwater’s indexing which involved analysing and transferring data into its index repository, in such a way that the words of news articles were translated into numerical codes (metadata) from which the articles could then be reassembled, must be considered reproduction under Norwegian copyright law.
This is an area of law where the law is being changed to accommodate how technology interacts with intellectual property, and we will only learn about its complications if there is case law or the Government expands laws and regulations to cover these matters.