Search Engines And Copyright Infringement: A Critical Analysis

13th February, 2023 - 5:51 am Categories: Copyright Infringement 0 Comments

Introduction

Search engines are a kind of web-based tool that allows a user to search for and identify content in a database using a term or character. The operating idea of all Internet search engines is identical to what Windows has done for computers. They have done something similar by making information available to inexperienced people. In terms of search engines, this gain may come at the cost of infringement of copyrights of many creators of websites.  An economic product or service is advertised on a website that the new search engine visits throughout this process. When the same product or service is searched for a second time, the search engines copy the location into their database and crash the site’s server, rendering it inaccessible to any other users in the meantime. Site owners are informed by search engines that their poor parameter configuration caused the website to crash when they complain about it.

[Image Sources : Shutterstock]

The idea was initially recognized in Folsom v. Marsh[1] in 1841, though the title “fair use” did not emerge until 28 years later. In order to prevent future search engines from indexing their information, the only alternative left to the website owner is to update the site’s software. In addition to suing these search engines for copyright infringement, website owners may also be able to persuade them to be more responsive and accountable to the aforementioned difficulties via other means. Authors and copyright owners have the right to prevent their original works from being reproduced without their permission in a tangible medium. Having a copyright protects one’s intellectual property from being used in any way. To promote advancements in science, technology and art, copyright mainly protects original works and exclusive rights connected with their publishing and creative works that are beneficial to society, while patents protect inventions. There are numerous creative works, such as web-based digital data transmission productions, that Copyright Law does not adequately protect since they were not included in the original legislation. Everybody knows that the Copyright Act protects literary works that are published in print media. Copyright Act, which protects the rights of writers to their written work, also protects the rights of writers to their visual works.

Legislation protecting “fair use”

The Copyright Act of 1957[2], as amended in 1994, acted very ambiguously when it came to holding search engines responsible.

Sec 51(a) (ii) – “To be considered an infringement of a work’s copyright, one must permit for profit “any place” to be used for the communication of the work “in public” where such communication includes, but is not limited to, the publication of the work on the internet, in print, or in any other form of electronic or print publication, whether or not the writer or operator of a copyright has granted permission for such use.”

Need For Enforcing Copyrights Against Search Engine Companies

Under copyright act a person enjoys exclusive rights to replicate, develop plagiaristic works based on works that have been copyrighted, dispense copies of the work copyrighted to the public, and publicly exhibit their “copyrighted works”, subject to certain statutory limits.[3]  Without the consent of the copyright owner[4], anybody who participates in any of these acts with a copyrighted work is responsible for copyright infringement[5].

There are two sorts of search engines: those that only offer address links to websites and those that provide abstracts of websites in addition to the links. Even search engines that don’t offer abstracts, however, copy content from websites. When a bot of search engine finds a Web site, it saves a copy of it to the search engine’s “Random Access Memory (RAM)” in order to classify it in the database.[6] Despite the fact that a copyrighted work has not been presented to the operator, carrying out work of the Web site into the RAM of the search engine’s, it might constitute a replica, or copy, of a “copyrighted work”, resulting in a potential “copyright infringement”. The question is whether “copies” stored in a computer’s RAM are “fixed” enough to be considered reproductions under the Copyright Act. “Fixed” is defined as “sufficiently permanent or stable…for a period of greater than a transitory length” in Section 101. [7]

Judicial Interpretations: The Four Factor

1.The Potential Market’s Impact – The Court decided in Harper & Row, Publishers v. Nation Enterprises[8] that a reproduction that directly competes for a market share for a protected content would seriously harm the copyrighted work’s marketability and hence would not constitute fair use under the Copyright Act.[9]

2.The Copyrighted Work’s Nature – The more original a work is, the adequate protection it really should be provided against copying under this factor. Fair use, on the other hand, should not apply to highly informational or functional works.

3. 3. The Use of Purpose and Character – The purpose and character of use include things like whether the usage is for profit or not. This factor does not specify which usage outside of non-profit educational purposes are acceptable.
4. Quantity and Intensity used – In order to give consumers with links or produce summaries of certain Web sites, browsers replicate entire Internet pages exactly onto RAM or hard drives. As a result, this aspect may work against a determination of fair usage. [10]

The Postmodern Internet: Adjusting The Fair Use Doctrine

Because of its distinct properties, the Internet is a genuinely postmodern media, capable of encouraging communication, involvement, and decentralisation. Fair use can be critical to the Internet’s capacity to accomplish copyright’s aims of fostering discourse and expanding the information commons.[11] By acting as a counterweight to measures such as technological protection programmes and digital licencing that seek to return to the prior, less effective, copyright paradigm, the application of fair use to the Internet will help preserve the characteristics that so uniquely embody the under copyright objectives.

Encouragement of a postmodern Internet through a broader application of fair use does not always imply that copyright holders lose all of their exclusive rights. Recognizing that the Internet is a postmodern medium does not imply renouncing conventional rights by making everything relative and subjective; rather, it implies protecting these rights within specified boundaries or key texts, such as the production and distribution of new works. Thinner property rights do not imply ownership transfer.

The Internet is a modern technology that has the potential to achieve the copyright scheme’s goal; as a result, the fair use doctrine should adapt when used to this medium in order to promote its growth. Fair use, because of its flexibility, should be recognised by the courts as a valuable instrument in supporting the expansion of the Internet. [12]

Conclusion

The quantitative and qualitative substantiality of content borrowed from a Web site determines whether search engine abstracts violate the copyrights of the site’s originator. These tendency should be halted by a closer examination (at a WIPO-convened international conference) of the existing extent of search engine immunity, as well as ideas for how and under what conditions it might be enlarged. This entails balancing numerous opposing interests and resolving tough policy issues, but given the fundamental relevance of search engines to our 21st century life, such a process is critical to economic and social prosperity. In summary, search engines have become an integral part of our daily lives, and we must guarantee that their right to function is explicitly stated and protected by legislation. 

Author: Ujjawal Vaibhav,  A Student of National Law University, Odisha, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[1] Folsom v. Marsh, (1841)9. F.Cas. 342.

[2] The Copyright Act 1957, s 51 (a).

[3] Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 923 F. Supp. 1231, 1242 (N.D. Cal. 1995).

[4] Salinger v. Random House, Inc., 811 F. 2d 90,9 (2d Cir. 1987).

[5] Feist Publication v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[6] Martijn Koster, “The Web Robots FAQ…” <http://info.webcrawler.com/mak/projects/robots/faq.html> as accessed on 8 April 2022.

[7] Anne M. Fitzgerald, “Search Engine Libility for Copyright Infringement”, Queensland University of Technology <https://www.researchgate.net/institution/Queensland_University_of_Technology> as accessed on 8 April 2022.

[8] Harper & Row v. Nation Enterprises [1985] 471 U.S. 539.

[9]  Parchomovsky Gideon and Kevin A, ‘Fair Use Harbors’ (2007) 93 JSTOR < https://www.jstor.org/stable/25050387?seq=1 > as accessed on 12^th April 2022.

[10] Dave Hakala, ‘Search Engines on Track’ NEWSDAY, June 9, 1996, 50.

[11] Hannibal Travis, Building Universal Digital Libraries: An Agenda for Copyright

Reform, 33 Pepp. L. Rev. 761, 814-19 (2006).

[12] Daniel Ovanezian, “Internet Search Engine Copying: Fair Use Defense to Copyright Infringement”, 14 Santa Clara High Tech. L.J. 267 (1998).