The Disruptive Competition Project(DisCo) has discovered a provision in a French law which requires search engines to pay royalties for the images they index. Although the Freedom of Creation Act was passed in late June, this particular provision in the law hasn't received much attention until now.
Under the provisions of the law, whenever a visual work is published online, the reproduction rights are automatically transferred to a collection agency authorized by the French government. Search engines must get a license from the collection agency in order to index the work and will pay a royalty in return. It will then be up to the collection agency to distribute the royalties to the creator of the work.
DisCo has numerous criticisms of this law. The group notes that search engines do not actually publish images, they only index images that are already published online and point users at the location to find them. Additionally, any rights holder who objects to their works being indexed by search engines can prevent them from doing so using a robots.txt file. DisCo also argues that there is no realistic way for collection agencies to distribute royalties to billions of rights holders. It argues that the collection agency itself and a few affiliated rights holders will win the "jackpot." DisCo also argues that the territorial limitations of the law are unclear:
Are the rights of reproduction and communication to the public transferred to a collecting society when an image is published on a French website or on any website? Is the measure based on the nationality of the works? In practice, this measure may claim ownership of the billions of pictures uploaded everyday globally – even though the huge majority of those pictures are published today for personal use by the close-to-3-billion smartphones’ owners, not expecting any revenue. It is also worth noting that a sizable number of those pictures is published under a Creative Commons license that usually refuse remuneration in return, for example, for attribution. Therefore, this measure would override the choice made by users publishing under such a license – and more generally, would deprive rightsholders of the choice between licensing their pictures or not.
So far, no collection agency is known to have demanded royalties from a search engine based on this law, but if it happens, search engines might simply pull out of France. In 2014, Spain passed a law requiring news aggregators to pay royalties to news publications that they linked to. As a result, Google shut down Google News within Spain rather than pay.
Should search engines pay royalties to license the images they index? Leave your comments below.