are: private copying, quotation, parody, library archiving, classroom uses, and reporting by the news media. Statutory exceptions are usually detailed and connected to specific states of technology, and therefore easily outdated. To make matters worse, the EU legal framework leaves Member States little room to update or expand existing limitations and exceptions. The EU’s Copyright in the Information Society Directive of 2001 lists 21 limitations and exceptions that Member States may provide for in their national laws, but does not allow exceptions beyond this “shopping list.”

Search

IllustratIon by magoZ / agooDson.com

A case in point, and a major cause of contention, is search. While operating a search engine in the U.S. would generally be considered fair use,a courts across Europe are struggling to a See Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir.

accommodate information location tools in copyright laws that provide for extensive rights of reproduction but only narrow and outdated exceptions. This should come as no surprise given the widespread copying of copyright material that most search engine providers routinely engage in. Consider, for example, Google’s web-crawler that makes digital snapshots of most content available on the Web at any time, or the Google cache that archives these copies for indexing purposes. For another example, consider the myriad thumbnails image search engines commonly return to users in response to queries. Dealing with these unauthorized copies in European legal systems that do not generally allow fair use is becoming increasingly problematic.

Court decisions in the Member
States of the EU illustrate the current
state of confusion regarding the copy-
right status of search. In a case brought
against Google by Belgian newspaper
publishers the Brussels Court of Ap-
peals held that Google squarely infring-
es the rights of copyright owners in
content cached by Google.b By contrast,
the Spanish Supreme Court held that
the unauthorized copies in the Google
cache were merely de minimis, and did
not amount to infringement. In a case
involving Google Image Search the
German Federal Supreme Court took a
middle-ground position by holding, on
the one hand, that Google’s unauthor-
ized use of (thumbnail) images is not
exempted by any existing statutory lim-
itation. On the other hand, any author
that makes his content available on the
Web without blocking webcrawlers, is
deemed to have consented to the use of
his content by search services.c Other
search-related cases decided by courts
in France, Austria, and other countries
point in yet other directions. 7 Eventu-
ally, the European Court of Justice in
Luxembourg will have the final say on
b Google Inc. v. Copiepresse, Court of Appeal
Brussels, May 5, 2011.