Managing Risks of Copyright Infringement When Linking post Meltwater v. Newspaper Licensing Agency

Earlier in the week I discussed the decision in Meltwater.

The decision is under appeal.  In the meantime, it is difficult to manage the legal risks when linking given the complex copyright law concepts involved in assessing whether a particular link is an “Intellectual creation” and original, and whether the destination website’s terms of use permit access to the material.

In practice people will probably simply ignore the copyright implications and continue linking as before when blogging or engaging in social media.  But those who are providing services, such as reputation monitoring for their clients, will need to tread carefully.

The task for the appeal court will be a difficult one. On the one hand it needs to strike the correct balance between enforcing copyright, while allowing the internet to continue to act as a hub for economic and commercial growth which has defined Web 2.0.  Linking is a ubiquitous aspect of the WWW, and many expect to be able to carry out such activities without much thought to the possible consequences.

The Australian Approach

In contrast to Meltwater, in the Australian case last year of Fairfax Media Publications v Reed International Books the court held that newspaper headlines could not qualify for copyright protection.  Referring to the US practice of excluding headlines and short phrases from copyright, the court commented that “to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer, or be referred, to articles by their headlines”.

The terms of reference of the Hargreaves Review is to propose how the UK’s IP framework can further entrepreneurialism, economic growth and social and commercial innovation.  So, it will be interesting to find out if they have any proposals to address the difficult issues raised by the Meltwater decision.

Good practice when linking

In the meantime, what approach should you adopt when engaging in the various activities which fall under the banner of ‘linking’?  I’ll cover some simple acts of linking in this post.

If you want to place a link on your site or blog to another’s website the safe route is to request consent from third party proprietors.  In practice, the third party’s site may already contain website terms of use which grant general permission to link to it.  For example the UK Government’s DirectGov website states that it “welcomes and encourages other websites to link to it”  So a website’s terms of use is where you may find out what permissions are given to use the site content.

There is doubt as to the effectiveness of such terms to bind users in contract unless they have specifically accepted the terms.  There would be no problem in showing acceptance of the terms if it were necessary to first register before using the site.  However, most website owners realize that if their site required registration it would considerably reduce the number of visitors.

As mentioned in my earlier blog post, in Meltwater the Judge complained that she had not received adequate argument on issues such as how visitors to a site could be said to have positively accepted the website’s terms of use.

Deep Linking

Where you want to bi-pass the home page and link direct to a specific page within a site this is known as deep linking and is potentially contentious.  Most sites’ terms of use disallow deep linking if they have been drafted by lawyers.  This became the standard approach after 1996 following the Shetland Times case.

However, deep linking happens all the time in practice.  Internet professionals are often amazed that permission is strictly necessary to deep link to a site.

The pragmatic approach on deep linking is to consider when disputes about deep linking are most likely to arise.   This would be where the deep linking results in a commercial advantage or disadvantage, such as would be the case where the site being linked to has advertising on its home page.  As the ‘route’ which the website designer had intended visitors to follow is interrupted by the deep link this would have an impact on advertising revenue.  If the impact was significant it could well lead to objections from the site owner.

Framing whereby another party’s content is displayed as your own, is unacceptable and is generally frowned upon, and would likely constitute copyright infringement as well.

In summary, while people’s use of the internet continues much as it did before the Meltwater decision, it makes sense to be aware of the copyright issues when linking.  Best practice is to be wary of linking to content where doing so is likely to make copyright material available to users in a way that the copyright owner did not intend.  So, anyone providing a service that’s reliant on linking, such as reputation monitoring services should be particularly careful.  While linking clients to discussions on a forum is unlikely to be a copyright problem, linking them to news articles would be.