PACA, along with the other U.S. associations mentioned below, joined this antitrust complaint as there was no viable option here in the United States for fighting Google’s revised search engine results. Due to our less restrictive anti-trust laws and favorable decisions for Google in 9th circuit, bringing a similar case against Google stateside would be difficult. Working together with CEPIC, with the support of the EU government, we feel will be an opportunity for a good outcome with enough leverage for changes globally.
Antitrust complaint supported by international coalition of the global Picture Industry
On behalf of thousands of photographers and picture agencies CEPIC, the Center of the Picture Industry, submitted a formal antitrust complaint against Google’s use of third-party images before the European Commission.
The complaint was submitted on November 8, 2013 by CEPIC, supported by an unprecedented coalition of European and US trade associations representing thousands of photographers and picture agencies worldwide.
Using image providers’ original works, Google diverts traffic from their sites to its own services.
The complaint addresses Google’s various unauthorized uses of third-party images in its horizontal Web Search and its specialized services, in particular Google Images. Google increasingly uses on-line images without the rightholders’ consent, sometimes even against their explicit will. Since the redesign of Google Images in January 2013, the situation got worse: Google presents images in full size and high resolution on its site and enables users to download them without ever having to click through to the original website hosting the image. Google does not even inform users properly about the origin of images and their copyright protection.
In addition, since summer 2013, Google uses third party images without their consent as so called “direct answers” on the results pages of its horizontal web search or in its “Knowledge Graph”.
As a result of these developments, Google diverts users’ attention from the legitimate rightholders to its own services, benefiting thereby from the rightholders’ investments. The image providers in turn are deprived of the credit and fruits of their work.
Google’s unauthorized use of images reduces the incentives to invest in the creation of original quality content for the benefit of Internet users, while exploiting website operators and visual content creators. Since Google at the same time rejects the implementation of any adequate technical mechanism that would allow image providers to better control how their images appear on-line, CEPIC considers Google’s exploitation of third-party’s images as an abuse of dominance under Article 102 AEUV.
The search engine has turned itself into a provider of “free” content and fuels online piracy at its sole profit.
To make matters worse, rather than improving users’ experience, the new design of Google Images Search encourages users to (illegally) download images on Google results pages. Online piracy, however, is the most significant problem the picture industry is faced with. According to CEPIC members, 85% of pictures found online by visual search systems are unlawful copies and 80% of those illegal images have been spread through search engines such as Google Images. By presenting images out of the context of their source page, without information on the author and a hardly visible copyright note, the new design of Google Images significantly increases this problem.
Since Google denies sophisticated rights expression technologies, photographers and picture agencies cannot protect themselves against this increasing exploitation.
Photographers and picture agencies are creators, owners and providers of visual content. Due to Google’s market share of up to 95% in internet searches in Europe, image providers depend on being found in Google’s web search, so that their investment in time, technology and creativity may be rewarded.
The picture industry expects an adequate balance between Google’s use of their content and the benefits they receive in return, in particular traffic on their websites. They cannot accept the presentation of their images in full size and high res outside of organic search results in the Google web search. Neither can they accept that their images are not used as search results but as “direct answers” without leading users to the source pages.
The picture industry also expects to be provided with adequate tools to protect their images from illegal downloads via Google. As Google’s unauthorized use of images and online piracy increase, it is essential that Google accepts and implements adequate technical solutions for the protection of image providers.
Unfortunately, image providers who have objected so far to the unauthorized use of their images online, in particular in Google Images, have been told that the only way for their images not to appear in full size in Google Images would be to opt out of Google’s services entirely, including Google’s web search. By providing such an answer, Google does nothing but take advantage of its dominant position in horizontal search. With Google’s web search currently being the central bottleneck between publishers and users of content on the Internet, opting out is not a sustainable business option for most rightholders. Opting out of Google effectively means opting out of the Internet.
Google’s revised commitment proposals of 21st October 2013 in the Commission’s pending competition investigation do not address image providers’ concerns.
While the Commission has recognized that Google’s unauthorized use of third-party content may constitute an abuse of dominance, Google has not offered any specific solution to end the exploitation of image providers. Google proposes a “Notice Form” to opt-out of all specialized Google services. However, this solution lags behind the existing opt-out tools and in no way helps image providers to restrict Google’s use of their images within the Google web search.
Against this background, CEPIC and the supporting trade associations want to make the Commission aware of the fact that despite the pending competition investigation, Google has actually expanded the scope of its unauthorized use of third-party content. They urge the European Commission to clarify that the ruthless exploitation of third-party content, especially of original images, is not a legitimate business model for dominant companies in Europe. As a minimum requirement they expect the implementation of a machine-readable rights expression language that allows image providers to express in which way and to which extent their works may be used by Google.
Alfonso Gutierrez, President of CEPIC says:
”For years the images industry has worked as a group of individual companies, each one with its own personality and individual perception about how to best show and license photographs. Since the arrival of the Internet, search engines have become the gravity center in how visual content is shown to the world, and as it is functions today it clearly does not protect authors, rightholders and copyright. We are at the inflexion point where all players in our industry are coming together to defend the protection of our photographs and the valuable intellectual property (or work) that they represent. I am glad to see that in this crucial debate the global picture industry stands united to protect its works and endeavor against exploitation.”
The informal coalition supporting the present claim consists of the following associations:
• The American Society of Media Photographers (ASMP),
• The Graphic Artists Guild (GAG).
• The National Press Photographers Association (NPPA)
• The Digital Media Licensing Association (PACA),
• The Professional Photographers of America (PPA),
While representing all its European members, CEPIC received particular support from the following national associations:
• Asociacion Empresarial de Agencias de Prensa y Archivos Fotograficos – Spain (AEAPAF)
• British Association of Picture Agencies andLibraries – United Kingdom (BAPLA)
• Bildleverantörernas Förening, Huddinge – Sweden/Denmark/Norway (BLF)
• Bundesverband der Pressebild-Agenturen und Bildarchive – Germany (BVPA)
• NLimage – Netherlands
• Schweizerische Arbeitsgemeinschaft der Bild-Agenturen und-Archive – Switzerland (SAB)
• SvenskBildbyraförening – Sweden (SBF)
• Syndicat National des Agences Photographiques d’Illustration Générales – France (SNAPIG)
Together those associations cover the vast majority of global image providers, photo agencies and photo archives and are representative of the global picture industry.
For further information please contact the (coalition) representatives:
• Sylvie Fodor, Executive Director of CEPIC, firstname.lastname@example.org ; +49 177 2332 514
• Alfonso Gutierrez, President of CEPIC, email@example.com, + 34 933 00 2552
• Dr Thomas Hoppner, Legal Counsel, Olswang Germany LLP, firstname.lastname@example.org +49 30 700 171-176