EUPillar Google Inc. v. Copiepresse, Société de Droit d’Auteur des Journalistes (« SAJ ») and Assucopie - 2007/AR/1730

Summary

The appellant, Google, operates an online search engine. Apart from the search function, Google offers a “cache” option, which allows internet users to retrieve copies of old web pages which are stored by Google. Google also offers the “Google News” service, which is a compilation of a large number of articles published by the written press and radio and television broadcasters. The first defendant, Copiepresse, is a company for the collective management of intellectual property rights of the French-speaking and German-speaking Belgian press. On 9 February 2006, Copiepresse brings proceedings against Google to obtain a “saisie-description”, which is a procedure specifically intended to obtain evidence of the infringement of intellectual property rights. On 5 September 2006, the President of the Court decides that Google cannot rely on any exception provided for by the Belgian Law on Copyright and Related Rights and orders to Google to remove all articles published by editors of Copiepress from its Google News site and from its cache. The case is initiated by Belgian associations for the collective management of intellectual property rights and concerns press articles that have been published on Belgian websites and are addressed to a Belgian audience. Google, on the other hand, argues that US law is applicable because the articles on Google News and in the cache are kept on its servers which are located in the US. Pursuant to Art. 5(3) in conjunction with Art. 5(4)(a) of the Berne Convention, Belgian law is applicable. The Berne Convention defines the “country of origin” as the country where the works are first published. Art. 5(3) provides that protection in the country of origin is governed by domestic law. If the Berne Convention is not sufficiently clear and does not allow to solve the conflict of laws, the Court must apply its national law. In this case, that is Rome II, in particular the general rule of Art. 4(1): the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which de indirect consequences of that event occur. It is not necessary to examine Art. 8 Rome II which is concerned with infringements of intellectual property rights nor Art. 93 of the Belgian Code on Private International Law, because both Articles use the same wording as the Berne Convention (the “country where protection is claimed” is interpreted as the country “for” which protection is claimed). The acts which prepared the copyright infringement, i.e. injecting the date into Google’s servers, must enter into account to determine the place of the damage. The infringement is a complex one, situated in different countries (the injection of the data took place in the US, the data were then disseminated in Belgium). Therefore, the Court must have regard to the country with which the tort is manifestly more closely connected (cf. Art. 4(3) Rome II). The Court decides that this is Belgium. The fact that websites with a domain name ending in “.be” can be viewed by internet users in the whole world does very little to alter the close connection to Belgium. The Court considers that if it were to prefer the country of “injection”, this would lead to “impunity” for companies such as Google which would in effect be able to choose their applicable law. However, in order to observe the territorially limited character of the injunction, the Court limits its order to the “Google.be” and “Google.com” websites.