Ms. Margrethe Vestager
Commissioner for Competition European Commission
Rue de la Loi 200 1049 Brussels

November 2016

Dear Commissioner Vestager,

CEPIC represents hundreds of picture agencies and libraries in Europe. In November 2013 three years ago, CEPIC lodged a complaint against Google  based on the abuse of its dominant position 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.

We are writing today on behalf of the Coalition of visual artists and visual businesses’ trade associations in Europe and in the US supporting the CEPIC complaint and ask you, as the Commissioner for Competition in the European Commission, to address Google’s image scrapping practices and put an end to the unlawful practices of Google which are a serious threat to the visual licensing industry and to the visual authors.

Google’s scraping practices present a real and imminent risk to the livelihood of Europe’s visual content businesses and the thousands of photographers they represent and other visual authors.  Google’s scraping practices stifle competition on-line, discourages investment in creativity, criminalize users while ultimately depriving them of choice and an opportunity to enjoy Europe’s diverse cultural heritage.

In January 2013, Google introduced a new presentation format on its Image Search which reduced dramatically the click-through rate to the source websites.

Until January 2013, a search on Google Images would return an index of selectable thumbnails with metadata information about the image. Upon clicking on the thumbnail, the user would be redirected to the source website where the selected image was displayed front and centre, with the source website featuring in the background.

This was a time when search worked like search – Google Images served as an online locator, directing users to source websites where images could be viewed and/or on offer under a license.

In January 2013 Google drastically changed its Image Search in the US and in most European countries.  With this new version, when a user now clicks on an image, Google Images does not re-route them to the source site but, instead, displays a high resolution, large format image in a Google image viewer. Now, users can scroll through endless galleries of high resolution images without ever leaving the Google platform; as images are framed, users can browse through these images and right click to download them without ever visiting the website where the images are stored.

The new format allows Google to retain users on its own page, where Google can gather user data in order to optimize its advertising revenues. Because images are framed (displayed in a frame thanks to a deep link to the source website), users are unaware that the images are hosted in another website. By allowing users to right-click, copy and save images and not displaying a clear and prominent copyright notice Google facilitates copyright infringement and induces users to inadvertently commit copyright infringement.

The effect of this new format has been a significant and long term drop in traffic to the source sites.  Because the new Google Image search draws on the bandwidth of the hosting website, the source website pays for the bandwidth used but without getting any of the attendant benefits of user traffic. While Google benefits from all the valuable data on image viewing, it does not pay anything for the visual content that it uses, without the authorization of the authors and right holders, to benefit its own services.

In response to complaints  on these practices filed in the US and Europe, Google only proposes the use opt-out tools to right holders by using the robots.txt protocol. This solution is not a remedy at all.  Right holders can either abide to Google’s terms of use of their images or simply disappear from the internet. Furthermore, an opt-out model does not work in the image licensing industry.  The  rights holders  (the  image providers) themselves do not control the websites from which Google takes their images as Google Images references images from picture buyers’ websites, not from licensors websites. As Google reserves the right to display images that it has sourced elsewhere,  regardless if these images have been taken without consent from website  which have opted out of Google  Images,  any opt-out  would  only incentivise  and reward  illegal  copying  as such copies would still be indexed and receive all the (remaining)  traffic coming from Google. The only viable remedy would be to reinstall the old design of Google Images.

In a competitive environment no search engine could afford to alienate premium content providers that attract users and in their turn advertisers by cutting them off their respective user base and promoting piracy. This, however, is what Google is doing when showing downloadable third-party images in full size and high resolution within Google Images Search.

Google derives revenue from the images framed in the image browser without having sought an authorization to display them in the way it does, let alone ever paying a share of the value generated to authors and picture agencies. Google exploits the picture agencies and authors who invested in creating the source websites where the images are hosted without receiving revenues to cover their costs. It breaks the value chain from the photographer, illustrator or artist creating the image to the publisher of the image over the picture agency or other representative of the visual artists such as a CMO licensing this image. The new format encourages “unconscious” piracy, deprives image owners of proper attribution and traffic, thus of the fruit of their work. Ultimately it discourages investment in creativity and narrows diversity of choice.

CEPIC (2013), supported by 20 trade associations in the US and Europe, and Getty Images (2016) filed a complaint for abuse of dominant position at the European Commission to put an end to these predatory practices. Several meetings with DG COMP followed, but so far the European Commission has refrained from issuing any statement of objections against Google. The scraping of content from third-party websites is the only field in which the European Commission has not taken any significant steps. In the meantime, online image licensing businesses and visual authors are suffering and many are shutting down.

In September 2016, the European Commission published a draft Directive on Copyright in the Digital Single Market. This Directive does not provide any efficient solution to redress the harm inflicted by Google images search as it does not address the framing loophole that Google Images exploits to its benefit. This loophole could simply be fixed by clarifying the right of communication to the public to ensure that any framing technique used in order to display part of any content hosted in a third party website, in such a way that it avoids the need of the user, or deters the user from, clicking on the hyperlink to be redirected to the source website where the content is published, shall be considered a communication to the public and reserved to the copyright holder.

Moreover and more importantly, in an anti-competitive search market dominated by Google, even if the copyright “framing” loophole was to be fixed, image providers would still not be in a position to enforce their rights and/or negotiate licenses as Google would use its dominant position to coerce image owners to “opt-in” to have their images indexed, as it did with press publishers in Germany following the introduction of an ancillary right a few years ago.

The function of a search engine shall be neutral and consist in directing the internet users to the most relevant source for the requested information.  This is why we consider that the only way to address this issue if to require from Google to reinstate its previous version of its image search and ensure that a click on a low res thumbnail in Google Images redirects the user to the source website. This is the only way to ensure that businesses from the visual creators and licensing industry can continue to survive and compete in a level playing field.

We are urging the European Commission to support the visual community made up of hundreds of small businesses representing hundreds of thousands individual photographers, illustrators and other visual authors to take decisive steps to stop Google’s predatory practices and ensuring that creativity and creative business online thrive on the Digital Single Market in the face of a powerful platform and the unrivalled market power of Google.


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