The I. Civil Senate of the Federal Court of Justice, which is responsible among other things for copyright law, ruled on 22 September 2017 that a display of copyrighted images found by search engines on the internet does not in principle infringe copyright.
The plaintiff operates a website on which it offers photographs. Certain contents of its website can only be used by registered customers against payment of a fee and after entering a password. The customers may download the photographs posted in the password-protected area onto their computers.
On its website, the defendant offers to conduct an image search free of charge on the basis of search terms that users can enter in a search mask. To conduct the image search, the defendant uses the Google search engine, to which it has provided a link on its website. The search engine determines the image files available on the internet by searching the freely accessible websites at regular intervals for images posted there. The images found are indexed according to search terms in an automated process and stored as reduced thumbnails on Google's servers. If internet users enter a search term in the defendant's search mask, the thumbnails provided by Google are retrieved and displayed in lists of results on the defendant's website.
When certain names were entered into the defendant's search mask, reduced photographs of models appearing under these names were displayed as thumbnails in June 2009. Google's image search engine had found the photographs on freely accessible websites.
The plaintiff claimed that it had acquired the exclusive rights of use to the photographs and had placed them in the password-protected area of its website. From there, customers had downloaded the images and published them without permission on the internet pages covered by the search engine. The applicant considers the display of the thumbnails on the defendant's website to be an infringement of its rights of use under copyright law and has filed a claim against the defendant for injunctive relief, the provision of information and damages.
The district court dismissed the action. The plaintiff's appeal was unsuccessful. The Federal Supreme Court dismissed the plaintiff's appeal.
By displaying the photographs found by the search engine and saved as thumbnails on its website, the defendant did not infringe the plaintiff's exclusive right under Section 15 (2) UrhG to reproduce the photographs in public. This also applies in the event that the photographs reached the freely accessible internet without the plaintiff's consent.
§ Section 15(2) UrhG implements Article 3(1) of Directive 2001/29/EC and must therefore be interpreted in conformity with the Directive. According to the case law of the Court of Justice of the European Union (GRUR 2016, 1152 - GS Media/Sanoma and others), placing a link to a freely accessible Internet page on which copyright-protected works are posted without the permission of the rightholder only constitutes communication to the public if the linking party knew or could reasonably have known of the unlawfulness of the publication of the works on the other Internet page. This case law is based on the consideration that the internet is of particular importance for freedom of expression and information and that links contribute to the good functioning of the internet and to the exchange of opinions and information on this network. This consideration also applies to search engines and to links which - as in the case in dispute - provide internet users with access to search engines.
In the case in dispute, the defendant did not have to reckon with the fact that the photographs had been posted without authorisation on the internet pages found by the search engine. According to the case law of the Court of Justice of the European Union, there is a rebuttable presumption in the case of links that have been placed with the intention of making a profit on internet pages containing unlawfully placed works that they have been placed in the knowledge that the copyright holder has not given permission for the works to be published on the internet. This assessment is based on the assumption that the person who sets links with the intention of making a profit can be expected to ascertain that the works on the linked internet page have not been published without authorisation before reproducing them to the public. However, due to the special importance of internet search services for the functioning of the internet, this presumption does not apply to search engines and to links placed to a search engine. The provider of a search function cannot be expected to check whether the images found by the search engine in an automated procedure have been lawfully placed on the internet before reproducing them as thumbnails on his internet page.
For the assumption of communication to the public, it must therefore be established that the provider of the search function knew or should have known of the lack of permission of the right holder to publish the works on the internet. In the case in dispute, the Court of Appeal did not err in law in assuming that it could not be established that the defendant, when reproducing the photographs as thumbnails on its website, had to reckon with the fact that the images had been posted on the freely accessible internet without permission.
Judgment of the Federal Court of Justice of 21 September 2017 - I ZR 11/16 - Vorschaubilder III
Lower courts:
LG Hamburg - Judgment of 3 December 2010 - 310 O 331/09
OLG Hamburg - Judgment of 10 December 2015 - 5 U 6/11
Source: BGH press release of 22.09.2017
GoldbergUllrich Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology (IT law)
E-mail: info@goldberg.de
