Image search via search engines – copyright infringement?

Does a search engine operator infringe copyright where copyrighted images found on freely accessible websites are displayed in the form of reduced preview images?

The operator of a website offers photographs for download. These are made available only to registered users against payment of a fee and only within a password-protected area.

Another website operator in turn offers its users image searches and avails itself of the services of the search engine operator Google. Displayed are reduced preview images, so-called thumbnails.

The website operator was sued because eight photographs were displayed in the form of preview images, which the claimant asserted were made accessible solely within the password-protected area and were unlawfully uploaded by customers on a freely accessible website. The display of the preview images constituted an infringement of her copyright usage rights.

The action failed, as it had already done in the lower courts.

The decision of the Federal Court of Justice (BGH)

The Federal Court of Justice (BGH) dismissed the claimant's appeal. In its judgment of 21.09.2017 – Az. I ZR 11/16 – "Vorschaubilder III" (Press release of 21.09.2017) the Federal Court of Justice (BGH) made clear that the display of copyrighted images found by search engines on the internet does not infringe copyright. Furthermore, the Federal Court of Justice (BGH) confirmed that this also applies in the event that the photographs had reached the freely accessible internet without the claimant's consent.

The Federal Court of Justice (BGH) bases itself hereby on the case law of the Court of Justice of the European Union (EuGH), according to which the setting of a link to a freely accessible website on which copyrighted works have been posted without the permission of the rights holder constitutes public communication only if the person creating the link knew or could reasonably have known of the unlawfulness of the publication of the works on the other website. In this case, according to the Federal Court of Justice (BGH), the defendant could not have expected that the photographs had been unlawfully posted on the websites found by the search engine.

The Court of Justice of the European Union (EuGH) did indeed establish that in the case of links which have been set with the intention of making a profit to websites with unlawfully posted works, a corresponding presumption applies. According to the Federal Court of Justice (BGH), however, this presumption does not apply to search engines and to links which are set to a search engine, and it justified this with the special importance of internet search services for the functioning of the internet.

Conclusion

By virtue of the Federal Court of Justice (BGH)'s decision, search engine operators are privileged. According to the Federal Court of Justice (BGH), it cannot be expected of them to verify whether the images found by the search engine were lawfully posted on the internet before they are displayed as preview images.