In the light of recent discussion regarding Newspaper Licensing Ireland and website links, I thought it might prove useful to look at what the law behind the whole dispute says, and at least as importantly, what it does not say.
A hyperlink direct to a particular page within a website has been termed a “deep link”, to distinguish it from a link which simply directs one to the homepage of a particular publication, (www.irishtimes.com, for e.g.). The validity of any such distinction is in fact questionable. The whole point of the internet is that it is a collection of individual pages, none any “deeper” than the other. Homepages, particularly news media organisation homepages, usually display copyright material. In a copyright context therefore, a link to a home page is no different in principle to a direct link to an article.
Links are not explicitly provided for anywhere in Irish law. When pressed in recent days, the newspaper industry could point to no specific provision to support their assertion that links require a licence. However, the most immediately relevant provisions are Sections 39 and 40 of the Copyright and Related Rights Act, 2000.
Section 40(8) provides for a “Making Available Right”:
“There shall be a right of the owner of copyright to make available to the public copies of a work or to authorise others to do so which shall be known and in this Part referred to as the ‘‘making available right’’.”
This right is defined as including making available copies of the work though the internet. The question here is whether posting a link constitutes such a “making available”. If so, it is something for which the copyright owner is entitled to withhold or charge for permission.
Robert Clarke, in his “Irish Copyright and Design Law” considers the provision only insofar as it applies to a degree of reproduction, stating “It is clearly an infringement of copyright to put a work on an internet server without the consent of the owner of the work”. This would include activity like uploading a film to Youtube. In the case of linking, no work is placed on a server; rather, the reader is directed to the copyright owner’s own server. In Clarke & Smith’s Intellectual Property Law in Ireland, Section 40(1)(a) is explicitly described as specifying “that placing works onto a server – acts of uploading – will be infringing acts”. The furthest the authors are prepared to go with regards to linking is to state that
“It may be possible to view the “authorising infringement” concept to be so wide as to discover acts of facilitation such as providing information on the location of infringing works on the world wide web, even if the infringing work is not available directly from that website”
The emphasis here is not on the act of linking, but rather the target of the link. It would follow that where the target to the link is not infringing, the link itself is not an infringement. The “making available” of the material is done by the newspapers themselves. Any external link is simply a direction to potential readers that here they may enjoy the article, much as one would direct a potential audience to the performance of a theatrical work by notifying them of the time and place of the performance. Contrary to their earlier statements to the contrary, NLI now appear to agree.
In recent days, there was much emphasis placed on the Terms & Conditions of individual Newspapers. Prior to NLI’s change of position, the Irish Times (whose responsiveness in this matter puts their fellow newspapers to shame) pointed to the provision in their T & C’s which permitted linking, for personal, non-commercial purposes. This of course assumed that such permission was the Irish Times’ to grant. The reason for this distinction was, in all probability, that the newspapers were attempting to reserve their position with a view to a possible license claim against google. The new position of the NLI seems to render any permissions granted in the T & C’s moot. Time will tell what has become of the newspaper industry’s aspirations regarding Google and other search engines and aggregators.
If, as is now clear, you can link without permission, what can’t you do? Section 39 of the 2000 Act provides for the “Reproduction Right”:
“There shall be a right of the owner of copyright to copy a work or to authorise others to do so which shall be known and in this Part referred to as the ‘‘reproduction right’’”
Copying or transcribing an article is clearly a breach of this right. How much of an article one can get away with quoting is unclear, but there is Court of Justice of the European Union case law to the effect that the creation of an eleven-word extract from a news article was capable of constituting “a reproduction, in whole or in part”. Thus, a short extract, where “the elements thus reproduced are the expression of the intellectual creation of their author” must come under the protection of the Reproduction Right. Technically, then, even reproduction of a headline might require a license.
An interesting side note, and one that did not receive much attention in the recent debate, is the question of who owns the copyright in the work of freelancers. Section 23 of The Copyright and Related Rights Act, 2000 provides
“The author of a work shall be the first owner of the copyright unless—
(a) the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary,
The effect of this provision is that newspapers are the first owners of copyright in the materials they publish, but only where the author of the article is an employee. Where, as is very often the case, an article is written by a freelance journalist, the journalist retains copyright unless he specifically waives it. Given the manner in which freelance work is commissioned, there is rarely any explicit agreement between freelancers and newspapers as to what rights are being acquired by the newspapers.
In the event that Newspapers have made demands for payment in respect of material in which they do not hold copyright, there may be civil liability for an account of profits, as in the US case New York Times Co. v. Tasini, where the Plaintiffs, a large group of freelancers, won a compensation pool of $18 million from the Times. The spoils of any such case in Ireland are unlikely to be so rich, but it’s an issue one would expect the NUJ to look at on behalf of its freelance members.
Update: A site which linked to this post did so in the context of a discussion regarding the meaning and limits of “Fair Use” in Irish law. By way of clarification, Fair Use has no meaning in Irish copyright law. The idea that it does is probably (along with the "Class Action" canard) the most commonly repeated item of legal misinformation online. Fair Use is an American doctrine with no equivalent here.