January 4, 2013

National Newspapers of Ireland (“NNI”) is aware of a lot of commentary and discussion that has arisen over the last few days in relation to linking to newspaper websites. Much of what has been said is based on inaccuracy and has not reflected our actual position on the matters being discussed. For that reason, we are keen to clarify NNI’s position.

Background

By way of background, NNI represents 16 national daily, Sunday and weekly newspapers and 25 local and regional newspapers. Some 10 years ago, a number of NNI members and other newspaper publishers mandated a separate company, Newspaper Licensing Ireland Limited (“NLI”) to license third parties in relation to the use of newspaper content in accordance with the Copyright and Related Rights Act of 2000.

NLI is registered in the Register of Copyright Licensing Bodies. NLI is a member of the International Federation of Reproduction of Copyright Licensing Bodies. NLI is a member of the International Federation of Reproduction Right Organisations and is a member of the Press Database and Licensing Network.

NLI facilitates the commercial use of copyright newspaper content, when that use would otherwise constitute an infringement of copyright (and therefore be unlawful by issuing licensing on behalf of the copyright owners. By doing so, companies and organisation are in a position to legally access, use and copy that content.

NNI members never object to their newspaper content being used by others for personal use.

Licenses are only required when newspaper content is being used by another party for commercial purposes. Neither NLI, nor the members of NNI, ever ask for a license to be taken by any person using newspaper content for their own personal use (whether that involves displaying links of not). It is an important way in which the position of NNI, and its member newspapers, has not been properly respected in discussions over the last few days.

Our approach when others are using newspaper content for commercial purposes

NLI routinely writes to companies and organisations to introduce NLI and to make them aware that any copying of newspaper content for commercial purposes requires a license. The sort of activities that constitute “copying” for these purposes are the photocopying of newspaper articles, placing of newspaper articles on an intranet website, viewing of articles on a website hosted by a press cutting agency and the sending of articles to clients or other third parties.

We should add that it is not at all unusual for any website operator (whether a newspaper publisher or otherwise) to prohibit or restrict the commercial use of their website content. Most websites have terms and conditions that either preclude or limit use of the content of the website for commercial purposes. Many website operators also specifically either limit linking to their website when it is for a commercial purpose, or entirely preclude it.

Much of the commentary over the last few days has been in relation to the issue of copyright licensing for the display of links. Firstly, NNI and its newspaper members never have had any difficulty with people displaying links for personal use. NLI does, however, require commercial users who engage in republishing of newspaper content to be licensed. Whenever NLI has required an organisation to take such a license, the organisation has also engaged, for commercial purposes, in some other “copying activity” in addition to the display of links (for example, where the organisation has reproduced either the text of the article itself or an extract from it alongside the links).

Our position on linking

Some of the discussion over the last few days has been around whether a hyperlink from one website to another, in itself and without any more, constitutes copyright infringement. That exact issue was in fact one raised a number of months ago in the Consultation Paper issued by the Copyright Review Committee appointed by the Minister for Jobs, Enterprise and Innovation to review existing copyright legislation. In the Consultation Paper, the Committee expressly requested that submissions would be made by any interested parties on the issue and as to whether our existing copyright law should be changed so as to specifically include a positive statement to the effect that linking in itself, without more, does not constitute an infringement of copyright legislation. This request or submission was made by the Committee in the context where the Committee itself states in its Consultation Paper that there are “divided” views from Courts as to whether the display of links in itself is an infringement of copyright. The Consultation Paper was made publicly available and anyone was free to make a submission on it.

NNI made a submission to the effect that our view of existing legislation is that the display and transmission of links does constitute an infringement of copyright and our existing copyright law should not be amended in the manner discussed in the Consultation Paper. We understand that some people do not agree with this interpretation of the law. Equally, there are others who do agree with it. As already indicated, the Committee itself acknowledged that there are divided views on this. We await, in due course, the final report from the Copyright Review Committee and await sight of whatever they might say or recommend on the point.

It’s important, in fairness to us and our members, to specifically note here that the submission made on behalf of NNI to the Copyright Review Committee also expressly recognised that there is a distinction between the sending and receipt of links for personal use on the one hand and the sending and receipt of links for commercial purposes on the other (despite the fact that the same legal principles apply to both). NNI specifically stated that its members accept that linking for personal use is part of how individuals communicate online and that our members have no issue with that.

 Conclusion

Whilst NNI and its members welcome any discussion and debate about the way in which creative content should be viewed and shared online, the discussion which has taken place over the last few days has not correctly reflected our practice or views. Our members do not, and have never, suggested that a license might be taken for anyone copying newspaper content for personal use. When organisations wish to use and exploit the original, creative content generated by newspapers for their own commercial purposes. It is both in accordance with law and entirely reasonable that they should seek prior permission in order to do so.