As out-law.com informed, Lord Lucas proposed new amendment to Digital Economy Bill (DEB). There are two significant copyright issues. One refers to organic search, whereas the second to copyright exceptions legislative power. So, let´s first get on the organic search. There are few (real) copyright issues in there.
- Indexing copies
Made when search engine (SE) crawls the web. SE inserts them into it´s large database. Even though it´s just a technical (invisible) use of copyrighted material, consent of copyright owner should be obtained unless some statutory limitation apply. Indexing is a use under copyright doctrine (compare to Google´s arguments in GBS ).
- Internal copies
SE makes a lot of other copies from those first copies, because it needs to evaluate the relevance and other highly technical operations. This operation falls into use concept as well.
- Search engine´s cache
I.e. Google presents it´s results with an option to consult entire cached copies of the indexed websites. Google engage itself in two copyright uses. Making another copy in order to enable presentation of own cache and communicating those cached copies to public.
- Snippets in results
There is no way to draw up any rule for creation of "snippet content" (as far as i know..). However, sometimes SEs use part of website´s content to present the website within it´s results. Therefore the snippet is usually so short that it could be copyrightable just in the exceptional cases. Considering ECJ ruling in Infopaq C-5/08, this could happen even with less than 11 words (ECJ used qualitative instead of quantitative approach to define copyright protected part of the work - nothing new in SR/CR legislation). If there is no copyrightable material, there could be no use (compare to copyrightablity of Google Books Search´s snippets).
So what does the current EU legislation says about this matter ? There is no copyright limitation dealing explicitly with SE´s use of works. So the theories are as follows:
1. implied licence without any royalty,
The website owner is aware of presence of SE in the online world. Publishing the content online is an act of giving a licence to the SE under this theory. However it could not be extended to caching function of SE.
2. copyright exemption,
The only by far not ideal but a bit similar could be the exception for temporary and transient copies. Some scholars proposed that this exception could be applied by analogy or extensive interpretation. Nonetheless, there is a problem with current doctrine of restrictive interpretation of any limitations to copyright laws (at least in SR/CR).
Some people don´t see any copyright issues in SE, while under their opinion there is no use of copyright material. These opinions are really infrequent and do not reflect current interpretation of copyright laws by courts and scholars in Europe.
Possible solutions de lege ferenda :
- copyright exemption,
This could appear in two modalities (1) without any royalty and (2) with some royalty (the one Rupert Murdoch would like to see probably).
- implied licence presumed by law
This is approach proposed by Lord Lucas (here as number 292) is fixing the current practice in black letter law. SE would acquire presumed implied licence for searching services by the law. The presumption should be rebutted by explicit evidence that such a licence was not granted (robots.txt file). I encourage you to read the details.
- "orphan works approach"
Search engine´s function isn´t that much different from recent problem with Google Book Search service. This approach would mean that use by search engine could be "covered" in two modalities again: (1) without any royalty and (2) with some royalty. There are infinite legal constructions for orphan works problem like (a) extensive collective licencing, (b) statutory exception, (c) court-granted licence (as in patents).
When looking at the aforementioned solutions, one should notice that not all of them are suitable for the search engine´s function in society - to localize the information for the user.
On the other hand DEB comes with another unique approach for legislating copyright limitations. It wants to grant legislative power in this field to government. This opens up a lot of problems. Maybe get on that latter.