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As pointed out by Soilman in the comment threads, a High Court judgement on Friday rules that web links to online sources are copyright. Which means news aggregation-type web sites need a licence to use them in their content.
What are the implications for bloggers? After all, we link to external content all the time.
According to the Newspaper Licensing Agency (NLA) web site:

The licence permits the copying of UK national & regional newspapers, both print and online editions as well as foreign & certain specialist titles. 

This includes photocopying, faxing & printing, digital reproduction (scanning, emailing and hosting on an intranet site etc.) and the receipt and distribution of content supplied by a third party such as a public relations or media monitoring agency. 

Our online questionnaire will help you determine if your organisation would benefit from a NLA licence and the type of licence required. Please select the appropriate licence from the list of licences on the left hand menu.

This doesn’t seem to cover simple hyperlinks – but High Court judge Mrs Justice Proudman disagrees. In the case (NLA versus Meltwater News) she ruled that:

“By clicking on a Link to an article, the End User will make a copy of the article within the meaning of [section 17 of the CDPA] and will be in possession of an infringing copy in the course of business within the meaning of [section 23]. By forwarding Meltwater News or its contents to clients an End User will issue to the public copies of the work within the meaning of section 18 CDPA.” (via Out-Law.com)

It seems there are two problems – the clicking on the link, and the forwarding of the link by email.
Bloggers cite their sources and references by linking all the time. In fact, if they don’t, they are in breach of standard web etiquette. But this now seems to be a breach of copyright. And if someone subscribes to a blog via email, they will receive those links in their inbox, thus breaching both parts of this ruling.

“When an End User clicks on a Link a copy of the article on the Publisher’s website which appears on the website accessible via that Link is made on the End User’s computer.”
“When an End User receives an email containing Meltwater News, a copy is made on the End User’s computer and remains there until deleted.”

So is there any difference between bloggers citing and sending links, and this being done by news aggregators or clippings services?
According to NLA managing director David Pugh, yes. He says that the case was not aimed at bloggers, that bloggers do not fall within the remit of the NLA and there is no licence available for the work that bloggers do.

“Our focus is business to business use of web content. Companies that charge to use newspaper content in their services. Meltwater acts in effect in the same way as a press cuttings agency. Clients pay to receive a media monitoring report every day.”

Pugh argues that the Meltwater case revolved around whether client requires a licence to receive such reports. Headlines and text extracts acquire copyright, and the company charged clients to receive it. Therefore, their service required a licence. However, he argues that bloggers should not be affected.

“I don’t think it’s the intention of newspapers to stop people linking to their content or driving traffic to their site. Our focus is business use and paid-for media monitoring.”

However, it is clear that, just because a group is not the target of a court ruling, it does not follow that that group will not be affected by that ruling.
If a blogger is very successful and makes a living from their blog (Guido Fawkes, for example), are they making commercial use of the links they use?
According to Pugh, there is no licensing structure in place to handle this, and it is not in the remit of the NLA to apply the licensing framework to the blogosphere. Obviously, however, the ruling potentially opens up bloggers to action by media owners.
Pugh’s advice for any content producer is to check their position.

“If anyone is in any doubt about whether they are infringing copyright, talk to the NLA or contact an individual newspaper,” he says.

What do copyright lawyers make of this?
Kim Walker, a partner at law firm Pinsent Masons, is “not at all surprised” at the ruling. Apparently the fact that URLs are a legitimate target for copyright action is not actually news. Here are some weird copyright facts:

• Posting a URL (web address) is not in breach of copyright.
• Clicking on a URL and therefore copying the web page it points to into your browser is a breach of copyright.
• So bloggers aren’t breaching copyright law, but site visitors are.
• But on the other hand, bloggers might be encouraging their readers to breach copyright, which is an offence.
• Bloggers can use extracts of copyright material for the purposes of fair dealing (ie comment and analysis).
• But clicking on a reference link could still be a breach of copyright by a reader.

The web exists as a network of links – so is everyone breaking the law?
No – according to Walker, there is an implicit licence for web users to click on links and so copy the copyright material to their computer.
However, if a web content copyright owner specifically says in their site’s terms and conditions that they do not allow it, that is a perfectly legitimate position. (Though clearly it is a bit bonkers.)
If the link is on a page owned by the copyright owner though, then you can click through to it, as the copyright owner has given you an implicit licence to do that. Which is a relief.
Luckily, the government is reviewing copyright law to make it “fit for the internet age”. Let’s hope they have some grasp of mashup culture…

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