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COPYRIGHT LAW VERSUS ACCESS TO INFORMATION ? THE CASE OF THE SEARCH ENGINES
The web is a gigantic space with one trillion webpages. In such a space where it is critical to find information, search tools offer internet users a way to dig into most of the available online materials. In order to provide their services, search engines need to process information from third websites (which can choose not to be included in search index, though they rarely do so). As such, the search tools’ core activity comes into contradiction with intellectual property provisions according to which unauthorized copies or displays of information subject to copyright are unlawful. In the USA, search tools operations have been under scrutiny of courts, which have ruled that they may pursue their activities. In other countries (India, Japan), legislators have created a copyright exception in favor of search engines. In the European Union, there is no general liability exemption that would benefit search engines in the EC Directive on electronic commerce. Courts of Belgium, France, England, Germany, Italy and Spain have had to decide whether or not indexing by search engines complied with local copyright laws, and issued strikingly diverging opinions. As certain aspects of copyright in the information society have been harmonized in 2001 in the EU, one would not have expected to hear dissonant judicial voices in this field. Decisions span from strict application of copyright regime and heavy sanctions against search tools to references to foreign law to exclude the application of local rules and conclude that a search tool is immune from copyright liability. The comparative analysis of these decisions shows that courts are not at ease applying copyright rules to search tools practices. Both the assessment of the grounds of these rulings, and the study of other legal provisions under which the practices of search tools can be looked at, do not allow to conclude that search tools operate with legal certainty. Such a situation is not satisfactory, as it directly or indirectly jeopardizes access to information to internet users worldwide. For the information society to run smoothly, and given the social and economic role of search tools as internet intermediaries, there should be a legal safeguard for their operations. The article concludes that a legislative change is as justified as necessary.

Keywords

information access, online information, search engines, copyright law, copy and display