Spanish Supreme Court Rules in Favour of Google Search Engine... and a Flexible Reading of Copyright Statutes?

• Author: Raquel Xalabarder
• Position: Professor of Law, Universitat Oberta de Catalunya
• Pages: 162-166

2012

Raquel Xalabarder

162

2

Abstract: On 3 April 2012, the Spanish Su-

preme Court issued a major ruling in favour of the

Google search engine, including its ‘cache copy’ ser-

vice: Sentencia n.172/2012, of 3 April 2012, Supreme

Court, Civil Chamber.*

The importance of this ruling lies not so much in the

circumstances of the case (the Supreme Court was

clearly disgusted by the claimant’s ‘maximalist’ peti-

tum to shut down the whole operation of the search

engine), but rather on the court going beyond the text

of the Copyright Act into the general principles of the

law and case law, and especially on the reading of

the three-step test (in Art. 40bis TRLPI) in a positive

sense so as to include all these principles.

After accepting that none of the limitations listed in

the Spanish Copyright statute (TRLPI) exempted the

unauthorized use of fragments of the contents of a

personal website through the Google search engine

and cache copy service, the Supreme Court concluded

against infringement, based on the grounds that the

three-step test (in Art. 40bis TRLPI) is to be read not

only in a negative manner but also in a positive sense

so as to take into account that intellectual property

– as any other kind of property – is limited in nature

and must endure any

ius usus inocui

(harmless uses

by third parties) and must abide to the general prin-

ciples of the law, such as good faith and prohibition

of an abusive exercise of rights (Art. 7 Spanish Civil

Code).

The ruling is a major success in favour of a flexible

interpretation and application of the copyright stat-

utes, especially in the scenarios raised by new tech-

nologies and market agents, and in favour of using

the three-step test as a key tool to allow for it.

Spanish Supreme Court Rules in

Favour of Google Search Engine…

and a Flexible Reading of Copyright Statutes?

by Raquel Xalabarder, Barcelona

Professor of Law, Universitat Oberta de Catalunya

© 2012 Raquel Xalabarder

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Recommended citation: Raquel Xa labarder, Spanish Supreme Court Rules in Favour of Google Search Engine… and a Fle xible

Reading of Copyright Statutes? , 3 (2012) JIPIT EC 162, para. 1.

A. The case

1 In 2006, the owner of a web page (

com>) sued Google Spain for the unauthorized re-

production and making available of its contents by

means of the Google search engine and the Google

Cache service, seeking damages for an amount

of 2,000 euros as well as an injunction to prevent

Google Spain from further operating its search en-

gine service.

2

The courts had to decide whether either one or

       

infringement:



the reproduction and display of some fragments

of the web page contents (‘snippets’) under the

Keywords: Limitations, Three-step test, Fair use, Ius usus inocui, Abuse of right, Good faith, Safe harbors, Links,

Search engines, ISP liability, Temporary copying