Legal Research

Lords? talk hyperlinking

By scott

The Digital Economy Bill finished its report stage in the4 House of Lords earlier this week (current text of bill to go to third reading here). Whilst the biggest news to come out of the report stage has been the well intentioned but bad new clause 17 and the possible widening of powers to block access to websites (A letter to the FT shows the variety of people and companies who oppose this clause), one of the more interesting things for me came on the final day when Lord Lucas tabled an amendment to add a “protection of the right to link to publicly available information on the internet”

He identified the issue that publishers have with the use of “a short text extract-for example, the headline or half of the first sentence or whatever-sufficient to give an indication of what the link leads to. “, especially by search engine and news aggregator sites such as Google news, and NewsNow (which publishes just the hyperlinked titles of articles)

He stated that publishers “are saying that the current fair use, which is limited to things such as reviews and research, does not cover the activities of search engines or news aggregators, and perhaps it does not?We, as Parliament, ought to draw the boundaries at a fair place for copyright owners and in a proper place for users of the internet. A link should be properly described, and it should be possible to use an equivalent of the right to make short extracts from reviews in order to describe that link. The publishers’ associations should get back in their box. ”

Lord Young, for the government, replied that he agreed that search and aggregation are both important but so, too, are the rights of content creators. He pointed the Lords to Meltwater v the Newspaper Licensing Agency were some of these issues are currently the subject of litigation before the Copyright Tribunal.

For those not familiar with this case, the Newspaper Licensing Agency (NLA) owned by the main eight national newspaper publishers had its remit extended from 1st January this year to cover paid-for monitoring of newspaper websites, so companies and sites who had been providing web monitoring, eClipping services to businesses for a price, suddenly found they needed to pay the NLA a license fee of around £10,000 per year. Meltwater, a clipping service is challenging the expanded NLA licence, calling it a ?link tax?

The selling of services is the main point in this case according to the NLA, not the linking per se although obviously the likes of News Corp have made clear they would want to charge any sites providing links regardless of whether they were then selling a service on.

Anyway, according to Lord Young addressing the issue of whether it is possible to use short excerpts of a work without infringing copyright:”Ownership of copyright in a work gives the owner exclusive rights to do certain acts in relation to that work. Infringement occurs if a person does any of those acts in relation to the whole or a substantial part of that work without the consent of the right holder. It is possible to use excerpts of a work without the permission of the right holder and without infringing copyright if those excerpts are not substantial, or if one of the statutory exemptions applies ? We will look at the situation, but, at the moment, we feel that this amendment is not the right one. ”

The problem, some would argue is that some publisher regard the title as a ’substantial’ part of the work, and clarity on this issue would be welcomed.

There is also a petition on the 10 Downing St site asking the Govt to create a specific freedom to create, aggregate, copy, publish and follow links to publicly available information on the internet.

Full post as published by Information Overload on March 11, 2010 (boomark / email).