International Law

Search Engine Copyright Exception in Violation of Berne Convention

By Karl-Friedrich Lenz

The new Japanese copyright exception for search engines I have translated here is in force since January.

Basically it gives search engines the right to copy without a license as far as that is necessary to run their search business. It also gives them the right to display a cached copy of pages linked to in the search results, thereby taking readers from the original site.

The limit to that exception is that it provides for an opt-out for the copyright holder. If they declare in the robots.txt file or in an appropriate html metatag that they don’t want search engines indexing their site, the exception does not apply.

That is in clear violation of Article 5 of the Berne Convention.  Paragraph 2 of that Convention reads:

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

Writing an opt-out into a robots.txt file is a formality, just like the old “all rights reserved” necessary in books published before America joined the Berne Convention. A copyright holder can only assert his copyright against search engines if he jumps through that particular hoop.
Requiring this formality is in clear violation of the Convention. If legislators want to hand out special favors to multibillion search engines, they need to do so without an opt-out clause.

Full post as published by Lenz Blog on February 21, 2010 (boomark / email).