The functioning of the internet can hardly be imagined without internet search engines. One of the examples which can to a certain extent demonstrate the hypertrophy of contemporary copyright law is precisely the functioning of internet search engines. The legality of their operation is, from the perspective of Czech copyright law, at the very least contentious.

It is generally known that in the internet environment, particularly on websites, many subject matters protected by copyright are published (for instance, literary works). On the part of internet search engine operators, the content of these websites is stored in their own databases or otherwise dealt with. Specific circumstances may depend on the chosen technological process; however, it may generally be stated that internet search engine operators thereby make reproductions of copyright works, or parts of copyright works. This activity then takes place within the business activities of the operator and fundamentally for the purpose of economic benefit (contextual advertising, etc.).

From the perspective of Czech law, authorised use of a copyright work may occur either on the basis of a contract (with the rights holder of the copyright work) or directly on the basis of statute, by means of a so-called statutory licence. Use of a copyright work includes making a reproduction (copy) thereof, unless this is done for “the personal use of a natural person, the purpose of which is not to achieve direct or indirect economic or commercial benefit.” If the work is used for the personal use of a natural person, the purpose of which is not to achieve direct or indirect economic or commercial benefit, this constitutes so-called free use (volné užití) (one of the statutory licences). A separate article has already been devoted to the issue of free use. However, the institute of free use is not directly related to the activities of internet search engine operators.

There is apparently no dispute that for website operators, the activity of an internet browser operator is in most cases beneficial (although opposite cases can also be imagined). However, the reason for or benefit of the activity consisting in making reproductions of copyright works is not decisive in the matter at hand, since Czech copyright law does not formally establish a boundary between individual cases of making reproductions of copyright works. Naturally, establishing such a legislative boundary could be rather difficult. There is thus no difference between making reproductions of copyright works by an internet search engine operator and copying others’ texts for the purpose of other business benefit (these circumstances may, however, be relevant in the area of criminal law).

Let us return, however, to the question of whether there exists any legal basis (contract or statutory licence) for making reproductions of copyright works by an internet search engine operator. As has already been mentioned, the activity of an internet search engine operator may be beneficial for a website operator. At the contractual level, it would thus be possible to hypothetically consider, in the sense that if I place a copyright work on my website, I implicitly consent to reproductions of this work being made by an internet search engine operator. Nevertheless, from this it cannot be inferred that a (licence) contract has been concluded between the internet search engine operator and the website operator. This would indeed constitute the conclusion of a contract between persons who have never been in any contact with each other. In this connection, it is possible to mention that the legislator was also guided by the intention to enable the conclusion of contracts in a similar manner in the amendment to the Copyright Act implemented by Act No. 216/2006 Coll. By this amendment, a special method of contracting for the conclusion of licence contracts for copyright works was anchored in the legal order (Section 46(5) and (6) of the Copyright Act (autorský zákon)).

In our opinion, the possibility of concluding a contract between persons who have never been in contact with each other (have not addressed legal acts to each other) should not be permitted. The legal issues of concluding contracts exceed to a certain extent the scope of this contribution; however, enabling the conclusion of a contract in this manner would, in our opinion, be contrary to generally recognised principles of private law and would moreover have entirely absurd legal consequences. For example, it would be possible in this way to bind a website visitor to various performances towards the website operator (including payment obligations) merely by reaching that site. From the above, it may thus be inferred that an internet search engine operator does not use copyright works presented on websites on the basis of a contract. Moreover, in many cases the website operator will not even be authorised to grant (sub)licences for copyright works to third parties, e.g. internet search engine operators.

It is thus possible to focus on the second possibility – the legal regulation of so-called statutory licences. As their designation suggests, statutory licences enable the use of intangible assets directly on the basis of statute. This constitutes an exception to copyright protection, and one of them is the above-mentioned free use. Of the other gratuitous statutory licences regulated in Section 29 et seq. of the Copyright Act, some connection with the activities of internet search engine operators can perhaps be inferred only in the case of the statutory licence for temporary reproductions pursuant to Section 38a(1) of the Copyright Act. This provision establishes that “copyright is not infringed by a person who performs temporary acts of reproduction of works which are transient or incidental, form an integral and essential part of a technological process, have no independent economic significance and whose sole purpose is to enable (a) transmission of the work in a computer or similar network between third parties effected by an intermediary, or (b) lawful use of the work.” It is evident that the activities of internet search engine operators do not satisfy all these necessary conditions. Whilst the question of the temporary nature of the reproductions made may in some cases be contentious, the internet search engine operator is certainly not performing acts which are transient or incidental, or acts having no independent economic significance.

No other statutory licence is related to the activities in question of internet search engine operators, including the legal regulation of so-called citations. It is thus possible to state that authorisation for the use of copyright works by an internet search engine operator cannot be inferred either on a contractual basis or on the basis of a statutory licence. It is evident that this situation in the area of (not only) Czech copyright law does not correspond to social need and social reality.

This text was translated from Czech to English using an AI translator.