A lot of heat has been generated by this issue in the last couple of weeks, arising from a demand by Newspaper Licensing Ireland (NLI) that the charity Womens’ Aid pay for links to newspaper content displayed on its website, and the outrage of their solicitor Simon McGarr who blogged about it on December 30th under the headline “2012: the year Irish newspapers tried to destroy the web”.
The NLI published a clarification of their position on January 4th. They say first of all that they only seek licences on behalf of their members (Irish national newspapers) for links provided in a commercial context. They do however maintain that linking does infringe, a position they argued in their submission to the Copyright Review Committee (due to report sometime soon, hopefully).
Are they right? Well, yes and no. There is a whole panoply of case law in a variety of different jurisdictions going in both directions. It is clear that linking can infringe, but that it does not by definition infringe. As linking is integral to the working of the internet, clearly it’s a major question. The case law proves that it does not have a single, or a simple answer.
My point here is simply to say that we should not get too exercised about it right now. There are higher authorities at work, namely:
The UK Supreme Court:
In the background to the NLI statement will be the UK Meltwater case, in which both the High Court and the Court of Appeal decided that links to newspaper content both by Meltwater (a commercial newspaper snippet service) and its end-users do require licences by the NLI’s sister society in the UK, the NLA. The Copyright Tribunal fixed the tariffs for these licences last February. Presumably the NLI tariffs bear some relationship to these. However the question is under further appeal to the UK Supreme Court. The hearing is imminent, scheduled for February 11th. Here’s the case summary from the Supreme Court website:
Issue
Are the copies created when accessing a web page exempt from copyright protection by reason of the temporary copies exception provided by s.28A of the CDPA?
Facts
The First Respondent is a company that manages the intellectual property rights of its newspaper publisher members. It creates schemes authorising the use of its members’ online publications. The Appellant is a professional association which represents the interests of its members who are UK public relations providers using the Meltwater News service.
The Meltwater service is akin to Google News. It trawls newspaper websites for articles containing search words which its end-users have given it. The end-users then receive search results, via email or by viewing them on the Meltwater website. These results include an electronic link to the article at the publisher’s website and a 256 character extract from the article.
The First Respondent sought a declaration that the members of the Appellant body (end-users) require a licence or consent in order lawfully to receive and/or use Meltwater News.
The Court of Justice of the EU (ECJ)
An even higher authority, obviously.
In a Swedish reference to the ECJ made in November (Case 466/12), the following questions have been addressed to the Court:
1.If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?
3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
4. Is it possible for a Member State to give wider protection to authors’ exclusive right by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
This hearing is further out. The deadline for observations is January 31.
Both cases will address the underlying legal questions.
So, let’s wait and see, huh?
