Legal opinion regarding Kalooga image service

Kalooga is an Internet search engine for image galleries and photo albums (hereafter: Collections) that can be found on the internet. Kalooga presents previews of these Collections on the Kalooga portal (www.kalooga.com) and within content widgets on publishers' sites.

Because most of the images in the Collections are protected by third-party copyrights, Kalooga has asked ICTRecht legal services to prepare an opinion on the legal status of its services with respect to copyright law.

In short, Kalooga's services are legal under Dutch copyright law and database law. Kalooga presents small thumbnails from a subset of the images in collections found on the Internet to announce the existence of those collections. Under Dutch case law (Zoekallehuizen.nl, Jaap.nl) this is a form of quotation excepted in copyright law.

More details are provided further down. First, I discuss which jurisdiction likely applies to Kalooga. Next, I look at the Kalooga search engine results and the thumbnails presented therein under copyright law. The case law cited above is discussed subsequently in detail. Next, a similar analysis is made for the Kalooga widget. Finally, I consider database law, its application to photo collections and the legality of Kalooga's services under database law.

This opinion was prepared by ICTRecht associate Arnoud Engelfriet, M.Sc., LL.M. Arnoud is a Dutch and European patent attorney with 10+ years of experience in software, copyright and patent licensing. He has published extensively on the subject.

Applicable law

Before any legal assessment of the Kalooga service can be made, the question must be answered under which law this assessment is to be carried out. While copyright law is largely harmonized, thanks to the Berne Convention and various European Directives on the subject, still national law may differ greatly on specific aspects. This applies particularly with innovative Internet services such as those offered by Kalooga. Under international private law, all circumstances must be taken into account when determining if a web service is under jurisdiction of a particular country.

Kalooga is a limited liability company organized under Dutch law (Chamber of Commerce 02089769) and with its principal place of business in Groningen, the Netherlands. Its website is hosted physically in the Netherlands (Zylon Internet services, Groningen). These factors weigh heavily in favor of a determination that Dutch law applies.

The Kalooga web site is offered in Dutch and English. Further, its services are offered in a generic way and not tied to any particular geographical region. These factors do not contribute much either way; these circumstances are so common that little weight can be assigned to them.

The Collections are available from any country in the world, Kalooga has not put into place any blocks placed on geographical origin of visitors of its website. Certain courts have been known to conclude from availability of a website in their country that the website is under its jurisdiction. However, this usually goes hand in hand with a finding of fact that the website is somehow tied or customized towards the country in question. As Kalooga has no such customization that I can see, this factor has little weight for me.

All in all it is more likely than not that the service offered by Kalooga is to be judged by Dutch law.

Kalooga search service

Kalooga employs a crawler that searches the Internet for Collections, which are recognized automatically based on certain criteria. These Collections are added to an index together with relevant metadata including the title of the Collection, the number of images in the Collection, the source URL (web address) of the Collection and each image in it, relevant topics for the Collection and date of last visit.

Images (used generically here to cover photos, drawings and other visual material) are not copied in their original form. Rather, so-called thumbnail versions are generated for each image in a Collection and it is the thumbnails that are stored on the Kalooga servers. While exact thumbnail sizes differ, apparently depending on the original proportions of the images, average dimensions are 150x100 pixels.

When a user enters one or more keywords on the website www.kalooga.com, a search engine result page (SERP) is presented with search results regarding Collections that according to Kalooga are relevant for the keyword(s) entered.

As can be seen in the screenshot to the right, each search result comprises the title of the Collection (hyperlinked to the original URL), a set of four thumbnails from the Collection, the number of images in the collection and a hyperlink entitled 'More from' followed by the domain name from the website where the Collection is hosted. This way of presenting search results complies with the Dutch Copyright Act as a way of quoting from a work to announce its contents to the public. I will elaborate on this in the next section.

Status of thumbnails in search results

Legally speaking a thumbnail version of an image is a reproduction in modified form (art. 13 Dutch Copyright Act, DCA). Its reproduction as part of a Web page therefore may constitute a copyright infringement (cf. ECJ 16 July 2009, C-5/08, Infopaq) unless it is authorized by the copyright holder or permitted under the DCA.

Kalooga strives to enter into license agreements with publishers of Collections, but at this stage has not done so with all publishers whose Collections are indexed by its crawler. For those Collections, the question thus becomes: which provision(s) of the DCA permit the reproduction of the four thumbnails in the Kalooga SERPs?

The most likely candidate is article 15a DCA which concerns the right to quote or cite from a work if:


1 . the work from which the quotation is taken has been lawfully communicated to the public;
2 . the quotation is in conformity with that which may be reasonably accepted in accordance with social custom and the number and length of the quoted passages are justified by the purpose to be achieved;
3 . the provisions of article 25 have been taken into account;
4 . the source is clearly indicated, together with the indication of the author if it appears in the source.

Lawful communication
The first criterion essentially means that one may only quote from a work that has been lawfully published in some way. Quoting from e.g. a private letter is not permissible. This criterion should not be an issue for Kalooga, as it only indexes publicly available Collections. (If a Collection for example is password-protected, the Kalooga crawler cannot access the Collection unless the publisher has specifically granted Kalooga access. Such specific access constitutes a license, which obviates the need for an analysis under article 15a.)
In certain cases, a Collection may have been put up by a publisher without authorization from the copyright holder. Kalooga is unable to recognize this situation and so would include this Collection in its index. This situation however is not one that criterion one of article 15a relates to.

Reasonable length
The second criterion boils down to the question whether a 'reasonable amount' has been cited from the work, which under well-established case law means 'no more than necessary for the purpose of the quotation. What this means for images has been the subject of several Dutch court cases, most notably Court of Appeals Arnhem 4 July 2006, LJN AY0089 (Zoekallehuizen.nl). In this case, the website Zoekallehuizen.nl ('Findallhouses.nl') presented thumbnails and textual snippets from houses for sale, to which an organization of realtors objected. The Court of Appeals held (item 4.8 of the decision):

[The website Zoekallehuizen.nl] in essence does what is necessary to enable the user to find (potentially) relevant websites of realtors by providing references with key data [the search results, including thumbnail photos, AE]. Using this data can be equaled with quoting from a work for the purposes of announcing from it. After all the data purports to announce to the user what he will see if he follows the hyperlink offered by [Zoekallehuizen.nl].

The use of thumbnail versions of photos of the houses was explicitly referred to by the Court as a 'reasonable and common' way of visually enhancing such an announcement. Quite specific was the ruling in Amsterdam court of summary proceedings, 7 August 2007, LJN BB1207 (Jaap.nl), confirmed in appeal of 13 December 2007, LJN BC0125. The facts were quite similar: Jaap.nl provided search results for houses for sale and included thumbnail versions of the houses shown on webpages from realtors. The court accepted this practice, but fixed the size of the thumbnails to 194x145 pixels. As various observers have noted, this was more an attempt to avoid further litigation by blessing a specific size currently used by the defendant than an conscious decision to put numerical limits on what can be quoted from an image.

While strictly speaking case law is not binding it is unlikely that other courts will deviate from these rulings. In the literature the cases have been recognized positively.

The Kalooga thumbnails correspond roughly in size to the thumbnails from the Jaap.nl and Zoekallehuizen.nl websites and are presented for similar reasons: to announce the Collection available on the indicated website.

A difference between these two websites and Kalooga is that Kalooga presents up to four thumbnails for each Collection where Jaap.nl and Zoekallehuizen.nl use only one thumbnail. The question thus now is whether four thumbnails are 'necessary' for the purpose of announcing the presence of a thumbnail. My answer would be yes, because by definition a Collection comprises multiple related images. To give a good impression of a Collection, it is necessary to show several images.

Provisions of article 25
Article 25 DCA provides for the so-called 'moral rights' of the creator, which include the right to be identified as author and the right to object to any mutilations of the work that are 'prejudicial to the name or reputation of the author or to his dignity as such'. Kalooga must thus comply with these rights insofar as that is reasonably possible for it.

As to identification of the photographer, this information is rarely if ever available in machine-readable form. I thus do not consider it reasonable that Kalooga would have to present his name in its search results.

As to the reputation of the author, the mere creation of a thumbnail version of an image does not constitute a 'mutilation' of the work.

In the Zoekallehuizen.nl-case the courts made little work of these provisions and easily concluded that these conditions were fulfilled.

Indication of the source
The final criterion requires Kalooga to indicate the source of the work from which it quotes. Kalooga clearly complies with this provision: the title of the Collection from which the thumbnails are obtained is shown directly above the thumbnails, and (as per Internet custom) this title is turned into a hyperlink to the original location of the Collection.

Kalooga widget

In addition to the search engine discussed above, Kalooga offers online publishers the possibility to publish search results as an addition to their own content. To this end, publishers include a so-called widget in the HTML source code of their web pages. This widget, loaded from the Kalooga.com website when necessary, analyzes the content of the web pages on which it is included and makes an automated query in the Kalooga index of Collections. The search results are presented as a small rectangle showing three thumbnails with buttons to allow scrolling through up to nine different thumbnails. In the widget, thumbnails appear to be slightly smaller than in the Kalooga SERPs.

In essence, these search results are presented for the same purpose as the search results on the Kalooga SERPs: to announce the content of the Collections.

Its presentation differs slightly due to space constraints, which in any case impacts the presentation of the required indication of source. In contrast to the indication of source on the SERPs as a title with hyperlink which is always visible, the indication of the source of a particular image in the widget search results is only shown when the user moves his mouse over the image.

While space constraints arguably dictate the omission of the indication of source, the fact that it can be shown in the same space when the mouse is moved over the image renders this argument weak. I would therefore recommend that an image's source be shown at all times when the image is in view.

Kalooga versus database law

The final question to consider is whether Kalooga's actions are legal under database law. The Dutch Database Act provides produces who invested 'substantially' in the building of a database with a fifteen-year exclusive right against wholesale copying or unreasonable extraction of data from that database.

A collection of images may qualify as a database under this definition. However, only in exceptional cases would such a database be protected, as the hurdle to prove 'substantial investment' in the building of an image database is high. Under ECJ 9 November 2004, Case C-203/02 (William Hill), such an investment must be aimed at the building of the database itself. The investment can be expressed in terms of time, money or effort, however, any investments for the creation of the photos themselves are to be disregarded when making the assessment.

Adding metadata and/or categorizing the photos into collections are examples of efforts that, if substantial, would create a protected database. Thus, a large image collection as available from e.g. www.istockphoto.com or www.getty.com would be protected under database law - if it weren't for the fact that their operators are US companies, who by law can never enjoy database protection (art. 7 Database Act).

Assuming Kalooga were to index a Collection that was covered by a database right, Kalooga's reuse would not relate to all or a substantial part of the content of the database but only to a small part thereof (up to four thumbnails from the Collection). Under article 2(2) of the Database Act, the producer of a protected database can object to the repeated and systematic extraction or re-utilization of insubstantial parts of the content of a database, evaluated qualitatively or quantitatively, where this does not conflict with the normal exploitation of that database or unreasonably prejudice legitimate interests of the producer of the database.

While Kalooga's reuse would likely be 'repeated and systematic', the question is whether Kalooga's use conflicts with normal exploitation or legitimate interests of the database owner. For the Kalooga search service I consider this unlikely. A normal exploitation of such a database would be to sell access (or reuse rights) of the photos. Thumbnails are hardly economically relevant in that context. Four small thumbnails from a large Collection (necessarily large, as small collections are not protected under database law) thus cannot in any reasonable way conflict with the normal exploitation of the database.

For the Kalooga widget the situation differs slightly. Because the photos are presented as closely tied to the web pages on which they are shown, and thus mainly are aimed to enrich the content, an argument could be made that this is something that normally a web site operator needs to pay for. I consider this argument unlikely, as the thumbnails in the widget situation are so small as to be virtually worthless on their own - the value comes from the group of thumbnails and not from any individual image in that group.

Moreover, this situation is unlikely to occur. As stated, most collections are not large enough to qualify for database protection. For those that are, Kalooga would have to represent an economic threat which is unlikely. And lastly, the producer of that database has to be seated in a EU country which is not the case with the major operators of large-scale photo databases.