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SAIF v. Google France, et al.

[This decision and summary were provided by Alexandra Neri, Partner and head of IP/IT in the Paris office of Herbert Smith LLP (alexandra.neri@herbertsmith.com)]

On 20 May 2008, the Paris Court of First Instance (Tribunal de grande instance) rendered an important decision in a copyright infringement case opposing the Google Images search engine brought by an association representing French copyright owners.

Google France and Google Inc. (“Google”) were summoned by the SAIF (Société des Auteurs des Arts Visuels et de l’Image Fixe), a royalty collection and distribution society representing graphic artists, which alleged that the Google Images search engine infringed the copyrights held by its members on their works and claimed no less than EUR 80 million in damages.

Firstly, the Court ruled that, based on article 5 of the Bern Convention, the case should be governed by U.S. law and the American Copyright Act of 1976, rather than French law. In particular, the Court held that the collection and referencing of the works as well as the operation of the search engine are the exclusive responsibility of Google Inc.

Secondly, ruling on the merits, the Court rejected the alleged copyright infringement, considering that Google’s reproduction of the copyrighted works fell within the fair use exception of the U.S. Copyright Act. Applying the criteria set out in Article 107 of the U.S. Copyright Act to determine whether or not the use was infringing, the Court found that:

(i) notwithstanding the parallel existence of sponsored links associated with Google Images, the service itself was totally free;

(ii) the nature of the protected works (pictures) was not argued by the parties;

(iii) the full reproduction of the pictures in thumbnails was necessary to inform users of the service; and

(iv) the informative referencing of the pictures by Google Images did not prevent authors from making commercial use of their works.

The High Court rejected the SAIF’s claims and eventually sentenced the latter to pay Google EUR 30,000 to cover its legal costs.

This decision, the first in France to apply the American fair use exception to a website accessible in France but run by a foreign entity, fuels a long running legal debate on applicable law relating to copyright infringement evidenced in France, and may well weigh in future French Court decisions.