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Spain: Google Cache is legal (the

The plaintiff accused Google of copyright infringement by reproducing snippets from his web site in the results page and by making available cached copies of his web site.

As to the snippets, the court (Sentencia de la Audiencia Provincial de Barcelona (Section 15), of 17 September 17, 2008) concluded that they are too short and thus not infringing.

As to the cached copies the court examined the exceptions to the copyright holder's exclusivity. The court doubted that the exception of temporary reproduction (Art. 31 I of the Ley de Propiedad Intelectual / Art. 5 I of the EU Copyright Directive) applies, because the copies Google uses for its service exist for a longer time, even if the original web site has been removed or modified. But the court did not make a final decision on this subject. Instead it looked at the three step test (See e.g. Article 13 of TRIPs. It reads: "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.") and the US fair use doctrine and found that these principles should also guide the interpretation of the scope of the protection of intellectual property rights in Spain in order to avoid absurd overextensions of the protection of copyright owners. The court than found that the Google Cache is a socially tolerated use and does not do any harm to the copyright holder. But Google has to comply with some basic requirements. Here the court refered to the caching safe harbor in Art. 13 of the E-Commerce Directive, (The caching safe harbor does not apply to the Google cache, but the court assumed that these requirements are also the limits that a cache provider must observe in order to respect the integrity of the work and the authorís right of making available the work). So there is no copyright infringement on the condition that

(a) the provider does not modify the information;

(b) the provider complies with conditions on access to the information;

(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Quite an interesting ruling. But I doubt that it will get much approval. While the Hamburg court in the thumbnail decision said that it is not the task of a court to invent new exceptions to the copyright holder's exclusivity, the Spanish appeal court did just that by combining fair use principles and requirements of the E-Commerce-Directive.





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