The Right to Be Paid for Links

We know from Crookes v. Newton that a link “by itself” is not a publication for the purposes of defamation in Canada. But what about a right by a publisher to collect royalties when being linked to?

It seems bizarre, but newspapers in Ireland are attempting to do exactly that. In a piece titled 2012: The year Irish newspapers tried to destroy the web McGarr Solicitors state:

This year the Irish newspaper industry asserted, first tentatively and then without any equivocation, that links -just bare links like this one- belonged to them. They said that they had the right to be paid to be linked to. They said they had the right to set the rates for those links, as they had set rates in the past for other forms of licensing of their intellectual property. And then they started a campaign to lobby for unauthorised linking to be outlawed.

The papers even provide a price list for the linking:

1 – 5 €300.00
6 – 10 €500.00
11 – 15 €700.00
16 – 25 €950.00
26 – 50 €1,350.00
50 + Negotiable

Legislative changes clarifying that linking involves copyright appear to be in works. More information can be found in the Further Submission of National Newspapers of Ireland (NNI) to the Copyright Review Committee on its Consultation Paper on copyright and innovation.

McGarr concludes:

The web is built on links. Links are what has made it so powerful and so threatening to established institutions of power.

Understandably there is some international outrage on this well beyond Ireland. Let’s hope the bright folks in Ottawa don’t get any ideas.

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Comments

  1. Bizarre indeed. Can it be that at a fundamental level these people just don’t understand the web and how it works — that a link to their site brings people to their site, to say nothing of the broader notion that without links there is no web? Put another way, what’s their expressed sense of harm? Does anyone know?

  2. They seem to focus on those using links for a commercial enterprise, though I don’t see that as being necessarily sufficient enough. From the report above:

    The NNI strongly believes that [the position that links are content neutral] simply by-passes the creator’s copyright and gives aggregators and other forms of on-line copiers carte blanche to disregard the legitimate interests of content creators…

    NNI, and its member publications, fully recognise 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). This is evidenced by the approach taken in the terms and conditions of most newspapers’ websites, where the use of links for personal use is expressly permitted, whereas that is not the case for commercial or non-personal use. NNI accepts that linking for personal use is a part of how individuals communicate online and have no issue
    with that. However, linking, where it is done for commercial purposes without fair remuneration to the rights-holder, is unfair. Doing so is not permitted in most newspaper websites’ terms and conditions and also, in the view of the NNI, is an infringement of copyright.
    [emphasis added]

  3. The Irish newspapers are into this game late. The Belgian (French-language) newspapers association sued Google a couple of years ago for linking to their headlines for Google News. Google dropped their links rather than paying for them. My impression is that the newspapers preferred the traffic, and made a deal to come back to Google.

    German papers were singing the same song this year, and were trying to get the legislature of one state to give them rights to compensation. Again, the result would likely to be dismissal from Google, not payment. I’m not sure that claim or effort has been resolved.

    I asked my listserv a couple of years ago what members’ clients do, either those who link or those who receive demands for payment. There used to be a ‘linking agreement’ that sites tried to impose on those who published links – in early days (a few years ag0) it was a long agreement; it has apparently become shorter.

    But I did not get a satisfactory answer to why one would make any agreement before linking. A site that does not want to be linked to has a very simple technical solution – at least for appearance in search engines.

    Some links may be passive (just the link appears) and some more active (the link carries with it a snippet of the text linked to – as Facebook does, for example). It should not matter, in my view.

    There was a lot of case law in the US in the late 90s about the rights to ‘deep linking’ (publishing a link to the story, not to the home page of the site) and ‘framing’ (where the content appears to be that of the linker, or at least the linker gets to surround the other’s material with its own advertisements.) I think that deep linking was held OK, but framing might have been a kind of passing off.

    I would no doubt be professional enough to be civil to a request for payment to link, but I sure would not pay.

  4. The Globe and Mail (in my adolescence I recall the then famous columnist Richard Needham referring to the paper for which he wrote as “The Slope and Pale”) recently stopped free access to online materials. While it is still possible to post links, as near as I can figure out if a reader of the pub in which the link appeared clicked on the link it would simply take him/her to the Globe page that tells you a payment is required.

    If that can be done presently I’m not sure why legislation is required.

  5. David Collier-Brown

    In the days before the web, one proposal for an on-line “hypertext” explicitly considered “transclusion”, where a link quoted a block of text, rather than pointing to it. The concept here was that the quoter paid the person quoted a small fee per use. (Ted Nelson’s “Literary Machines”, 1982)

    The web created by Tim Berners-Lee was distinctly simpler, and links merely pointed to things. This was a conscious mimicking of citations, and so one would expect the opposite sort of financial transaction: the person linked to would be at least tempted to pay to have the links.

    I would tend, like John G, to distinguish the two, and expect publishers to negotiate with Google-like businesses so as to ensure most people see enough to whet their interest, and want to go the the publisher’s for-pay site.

  6. David Collier-Brown

    An interesting discussion of large-scale robot use of the things links point to, as cited on groklaw.net

    http://www.mondaynote.com/2013/01/06/linking-scraping-vs-copyright/

  7. The Law Society of Upper Canada says that it restricts the right to link to its web site, in these terms:

    LINKING AGREEMENT

    If you want to link to this Site, you may do so, provided you agree to the link conditions described below (“Link Conditions”):

    1.A link may be established to the following page of this Site: http://www.lsuc.on.ca. Links may not be established to any other pages on this Site without the prior written permission of the Society.

    2.If you link to this Site, your website,

    i.may not imply that the Society is endorsing you or your products or services;

    ii.may not imply an affiliation between you or any entity on whose behalf you may be acting without the prior written consent of the Society;

    iii.may not misrepresent your relationship with the Society or present false or misleading impressions about the Society or its services; and

    iv.may not contain content that may be interpreted as distasteful or offensive.

    3.The Society shall have no responsibility or liability for any content appearing on your website.

    4.The Society may at any time, in its sole discretion, immediately terminate your right to link to this Site, with or without cause. If the Society exercises this right, you will immediately remove all links to this Site.

    5.The Society may amend these Link Conditions at any time. You agree to abide by these Link Conditions and the other Terms and Conditions on this Site, as amended from time to time.
    By establishing a link to this Site, you will be deemed to have agreed to these Link Conditions.

    These conditions may be found under Legal Notice near the bottom of the page.

  8. Wow, I hadn’t seen this before, John. You’ve got to hope that this was drafted pursuant to some… erm… legal advice, because I’m gobsmacked. I’m talking about items 1 & 4, basically. (Item 5 is an embarrassment.) I’d love to see the rationales.

  9. I’ve looked into the history of this portion of the LSUC website. The linking notice was added in 2002: http://web.archive.org/web/20021203031055/http://www.lsuc.on.ca/copyright_en.jsp So whatever else its merits, it’s got maturity on its side.

  10. Well, it was done back in the day when people still thought they could get away with this kind of thing… See my earlier comment about long-form and short-form ‘agreements’, and deep-linking. I doubt that a word of it is enforceable, though of course I give no legal opinions one way or the other.

  11. I am late to this discussion but I am not sure I understand the justification for this. I like Mickey’s post as it seems pretty clear that the link destination can be passworded or otherwise have some restricted access.

    Maybe my thinking on this is simplistic but isn’t anything on the web similar to a sign posted on a street light. Like a post-card it is there in plain sight for anyone in the public to see. By putting a link to that webpage isn’t it the same as simply pointing to the streetpost and saying ‘hey look at that’. The words are still copyright but I am not reproducing it by pointing to it and the author put it out there for all to see.

    So unless I reproduce the article in another publication how can this even be an issue?

  12. The main if not only reason that this is a live issue at all is that Google (not alone but in particular) has huge revenues from pointing at all those signs, and the posters of those signs want to dip their ladles into that revenue stream. All legal arguments are worth trying for that purpose.

    That’s not (I expect) the reasons for the Law Society’s linking conditions. I think they date from a time when it was hoped that the World Wide Web would be a more controlled and legalistic place than it has turned out to be.