When Google searches the web and indexes and caches and makes thumbnail copies of visual works available to the public, is it liable for copyright infringement? Also, which country’s copyright laws apply to determining Google’s liability? Is it US law where much of the indexing and caching take place and from where Google transmits thumbnails and links to original works of art to the public? Or is it the place where the thumbnails are viewed (or communicated to)?
These issues were considered by the Paris Court of Appeal in the La société Des Auteurs des Arts Visuels et de L’image Fixe Visual Auteurs (SAIF) v Google France S.A.R.L. and Google Inc case decided last week.
The question of applicable law
The Paris Court of Appeal first dealt with the conflicts question as to which law to apply. It held that French copyright laws applied because that was the country in which, according to Article 5.2 of the Berne Convention, copyright protection was sought. According to the Court, Google intended French citizens to be able to view the indexed and cached images in France and accordingly it was that country’s laws which applied. According to the Court (all translations by Google Translate):
Whereas there is no serious dispute that the applicable law in copyright is the country where protection is claimed, this attachment under Article 5.2 of the Berne Convention for the Protection of Literary Art and the provisions of which were recalled by the decision being appealed; that for much remains to determine the law of the country where protection is sought;
GOOGLE argue that companies that under the legislation and means that the place where the acts were committed at issue, namely the United States, which present a interest of uniqueness, consistency and certainty while appellant argues that the law the place where the damage caused is more relevant in terms of proximity to the dispute and exclude any risk of implantation of the content of a site based solely on the choice of a countries where legislation would be unfavorable to the right of authors;
It is certain that in the context of the Internet instead of the event is not necessarily the same as the damage; in this case French law is that of the judge, law of the country where protection is sought and that for which it is claimed, which may be the place where the acts complained of are borne;
It can not be accepted that the attachment to the French territory would not be sufficient to sole ground that the allegations are essentially originated outside of France, being observed that it is not really disputed that the law of the place where the damage is likely to apply in case of manifestly closer proximity to the dispute;
In this respect if the services under investigation may be viewed by an audience speaking it is nevertheless the case that bears on how Google Images for French language services available to the public and is mainly French for that audience in that it is especially accessible as a URL in “.com” (google.fr and images.google. fr), which territory is indisputably French deliberately described as the country where the images can be viewed and chosen in full knowledge of question;
That the place of connection and reception manner by the holder of the search engine is a significant criterion of proximity while services set to produce placetendent their effects in France and that their purpose as claimed by the respondents was “to facilitate Internet users’ access to information and knowledge;
He is well enough established that the receiving country is a link nearby clearly more relevant than events for assessing this litigation, that decision will be criticized accordingly reversed insofar as it applied in the cause of the Copyright Act of 1976, not French law;
The facts of the Google case pose a significant challenge to traditional conflicts of laws principles applied to copyright cases. The Court found that the copyright liability of a search engine associated with the acts of indexing and caching are to be assessed not by the laws where those acts take place, but by the laws of the place in which damage is done e.g. the place where the thumbnails are communicated to the public. In essence, the Court held that Google’s acts of indexing and caching files in California are subject to the national copyright laws in every country in which Google makes its search service available-which is nearly everywhere on the planet.
Is the decision on this point right?
Under traditional conflict of laws principles applied to copyright, where a foreign element is involved in a claim the court or tribunal must determine what law (the “relevant law” or “applicable law”) to apply to determine the issue. There are choices between the law of the forum in which the action is being tried (lex fori), in this case France, and the law of the place where the infringing act took place (lex loci delicti). Most often, suits are filed in the country where the infringement allegedly takes place (the “protecting country”). However, suits are sometimes also brought in one country (the “forum country”) for acts that take place in another country (the “protecting country”). In this case the claim was brought in France, the forum country, for acts of infringement that arguably included acts that take place in the protecting country (acts of reproduction associated with indexing and caching) and the forum country (acts of communication to the public).
The copyright treaties do not expressly discuss choice of law rules. Article 5(2) of Berne Convention which was cited by the Court states, however, that “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”. This Article has generally been interpreted to implicate a rule of territoriality in which the applicable law is the copyright law of the protecting country, the lex loci deliciti. In an action in which infringements are claimed in multiple jurisdictions, protection has to be analysed country by country, without regard to the substantive copyright laws of the forum country. In such cases, the court in the forum jurisdiction needs to apply the law of each protecting country. The application of the lex loci deliciti to determining infringement issues, is consistent with the doctrine applicable to torts in both the US and in Canada.
The application of the lex loci delicti principle means that the question as to whether the issue in dispute is a work capable of being protected e.g. is it proper subject matter and does it meet the applicable laws’ originality requirement and questions as to whether an economic right exists and the question of the scope of the rights, are to be answered in accordance with the law of the protecting country. 
Applying the lex loci delicti principle, the French Court might have concluded that the acts of indexing and caching which involve acts of reproduction that took place in California should have been analyzed under US copyright law and the acts of communication to persons located in France should have been determined in accordance with French law. But, it did not do so. The Court looked at all of Google’s activities including that thumbnails were communicated to the public in France and assessed all of Google’s activities under French law.
Was Google liable for reproducing and communicating copies of visual images to the public in France?
The Court accepted that Google’s search service involved making reproductions of the copyright works of visuals artists from France, Canada and elsewhere. It also accepted that those reproductions were communicated to the public in France. Hence, there were acts of direct copyright infringement that Google could have been liable for. However, the Court held that Google was not liable for those acts.
The Court’s reasons for this conclusion are difficult to interpret. But, it appears that the Court viewed Google’s search service as being that of a neutral intermediary. Google would not be liable for purely automated acts that are an integral and essential part of the proper technical functioning of a search engine, at least as long Google remains an innocent intermediary by, for example, taking steps to remove or disable access to infringing content from its indexes and caches when it becomes aware of infringement (such as by complying with notices of claimed infringement and removing the allegedly infringing files from its indexes and caches).
 The term “relevant law” or “applicable law” means a country’s copyright and related laws including such laws as the country’s courts will apply in resolving conflicts of laws in the field of copyright. Geller International Copyright Law and Practice (Mathew Bender) (Geller International Copyright) at P. INT-7.
 Sterling World Copyright Law (Thomson 2d Ed. 2003) at P 122-123, 128-129
 The distinction between a “forum country” and the “protecting country” is made in Geller International Copyright at P. INT-7. I leave aside the question as to whether copyright infringements taking place outside of a forum state are justiciable in the forum state. See, Lucasfilm Ltd & Ors v Ainsworth & Anor  EWCA Civ 1328 (16 December 2009); Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45
 Geller International Copyright at P. INT-41-44, Ulmer Intellectual Property Rights and the Conflicts of Laws (Kluwer) at P. 11-14, .); Subafilms Ltd. v. MGM-Pathe Communications Co., 30 U.S.P.Q. 2d 1746 (9th Cir. 1994); Creative Technology, Ltd. v. Aztech System PTE, Ltd., 35 U.S.P.Q. 3d 1590 (9th Cir. 1995); Murray v. British Broadcasting Corp., 81 F.3d 287 (2nd Cir. 1996) at P. 290-293, Itar-Tass v Russion Kurier, Inc. 153F. 3d 82 (2nd Cir. 1997); Capital Records, Inc. v. Mercury Records Corporation, 105 U.S.P.Q. 163 (2nd Cir. 1995); Pearce v. Ove Arup Partnership Ltd.,  Ch. 403 (C.A.).
 Geller International Copyright at P. INT-41-4., Sisro v Societie de droit neerlandais en liquidation Ampersand Software BV (2002) IIC Vol. 34 701 (France. Sup.Ct. Mar. 5, 2002)
 Boosey & Hawkes v. Walt Disney Company (2d. Cir. April 30, 1988), Armstrong v. Virgin Records Ltd., 54 U.S.P.Q. 2d 1539 (S.D.N.Y. 2000); Creative Technology, Ltd. v. Aztech System PTE, Ltd., 35 U.S.P.Q. 3d 1590 (9th Cir. 1995), P&D International v. Halsey Publishing Company 5 U.S.P.Q. 2d 1133 (S.D. Fla. 1987); World Film Services Inc. v. RAI Radio Televisione Italiana, S.p. A. 50 U.S.P.Q. 2d 1187 (S.D.N.Y. 1999)
 Geller International Copyright at P. INT-7, Itar-Tass
 Tolofson v. Jensen,  3 S.C.R. 1022
 Geller International Copyright at P. INT-41-44, Sterling World Copyright Law at P 150, Itar-Tass, Bridgeman Art Libray ltd v Corel Corp. 50 U.S.P.Q. 2d 1110 (S.D.N.Y.1998)