A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we try to figure out if a newspaper rights group is really trying to charge people for using web links.
But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.
Rights holders will have to sue over every counterfeit consignment entering the UK
and
EU Commission investigates the right to digital disappearance
Companies will have to go to court every time they want counterfeit goods to be stopped at the UK’s borders following a policy change that could send costs soaring for intellectual property rights holders.
The change means that a rights holder will need to take court action within 10 days every time it wants suspected counterfeit goods stopped from entering the UK. Previously, a company statement was treated as sufficient evidence that goods were fake.
Her Majesty's Revenue and Customs (HMRC) has reversed its policy on the burden of proof in relation to goods stopped at borders. It will now release goods unless immediate court action is taken.
HMRC said that it will only seize goods permanently if ordered to do so by a court. It will detain them for 10 days initially, and up to 20 days on further application. If no court case is taken by then the goods will be released, it said.
The European Commission is to investigate whether or not people have the right to disappear from the ever-more pervasive digital networks that surround them.
The Commission has expressed concern about the privacy implications of personally-identifying technologies such as Radio Frequency Identification chips or RFID chips. It said that it is important to discuss whether or not people should be able to disappear from networks.
The consultation will form part of an action plan published by the Commission outlining how it will legislate and regulate the coming phenomenon it calls the 'internet of things'. This is the name it gives to the increasingly automatic communication between devices and tags that are forming complex networks around citizens.
Viviane Reding, EU Commissioner for Information Society and Media, said: "the promise of this new development of the internet is as limitless as the number of objects in our daily life it involves. However, we need to make sure that Europeans, as citizens, as entrepreneurs and as consumers, lead the technology rather than the technology leading us".
Those were some of the top stories from OUT-LAW News.
When the now-knighted Tim Berners Lee came up with the world wide web twenty years ago there was one basic principle underpinning it all: links. Information could be linked to other information, the data you needed was suddenly just one click away.
It was a beautifully simple organising principle and has survived largely unscathed to this day. Attempts to assert various rights and controls over who can link to what have largely failed.
But now an agency acting for UK newspapers is trying to extend its reach online by charging some companies for the right to link to newspaper pages.
Now, hold your outrage – the newspaper licensing agency isn't coming after you or your blog, they're not out to take the web down, but their latest plan has caused some consternation in the companies they deal with.
The NLA issues licenses to media monitoring companies. These are agencies which scan the newspapers for mentions of their clients then provide clippings of stories that mention them.
In the bad old days of scissors and glue this involved photocopying bits of newspaper and putting them in a file. This obviously entailed the commercial copying of copyrighted material, so agencies paid the NLA a licence fee. Similarly, when agencies create digital scans of pages there is little argument that fees should be paid.
But what happens when agencies use digital technologies to search for companies' names and send links to their clients? Should fees be paid in those cases to compensate for copyright use?
The NLA thinks so, and has announced that from next January its remit will extend to cover newspaper websites.
Andrew Hughes is the Commercial Director of the NLA. He explains the change.
Andrew Hughes: What we are saying is that those organizations who are creating and using paid for media monitoring services and paid for media monitoring services in our experience are used by very small number of companies we think in respect of printers less than 3,000 in the UK but those companies and the, more to the point, the companies that serve them that go to newspaper websites, copy all the material from newspaper websites, create a database of it, select relevant stories out of it, database the clients and offer that, say paid service to their client, we feel that say a user using newspaper materials which is certainly requires a copyright licence which those organisations then currently have and certainly requires some kind of formal agreement with the publisher in respect of the publisher’s terms and conditions. So what we have done is created a licence which deals with those aspects, allows them to continue operating as they are today but that you levy some kind of royalty on the process.
Hughes outlined how the agencies work, and said that there is clear copyright use involved in their day to day business.
Andrew Hughes: They have robots which goes to the newspaper websites they make a local copy of that content then they search that local copy that they have created for relevant stories for their clients and send their clients links to those articles so there is a, in some cases they are actually selling the data as a database to third parties. I think the idea that some kind of copyright licences are appropriate in circumstances is difficult to ascertain. We hope ultimately they feel that if they are engaged in that type of activity it is much better to be with the consent the publishers than on the assumptions that publishers might not mind.
The new plan involves media monitoring agencies clients paying a licence fee as well as the agencies themselves.
Hughes said that one of the ways in which the service will be priced will be by the number of story links sent out to clients.
This has struck some observers as being far too close for their liking to charging for web links, but Hughes insisted that no claim is being made that there is copyright in the links themselves, just that it is a convenient metric on which to base its charging.
There is something of an elephant in the room, though, and that is Google. Its own monitoring service, Google Alerts is free and it allows you to choose a word or phrase and tells you when that appears online.
Hughes said that even if media monitoring companies used that instead of creating their own databases of content, it would still try to make them pay its licences.
Andrew Hughes: Yes, they will be making a business use of the newspaper website in contravention to terms and conditions of those websites. There is a multi million pound industry being created out of copying newspaper website material and the NLA is looking to support that with an appropriate licensing infrastructure.
There is a potentially bigger problem with Google, though, and that is that there are no plans to try to force Google to licence other people’s content. This has become a major sticking point for the media monitoring companies that OUT-LAW has talked to.
Most are still involved in negotiations with the NLA so wouldn't talk on the record, but one told us that they are happy to pay to use copyrighted content, but not if a potential competitor just doesn't have to.
He told us that Google could end up competing with his firm, that it would just take a beefed up version of its Google alerts service to put competitive pressure on media monitoring companies. Yet Google is not being asked to take out a licence. This, he said, has been a barrier to his company's reaching a deal with the NLA. Another media monitoring executive held similar views. "The view of our industry is that there should be a level playing field – either everyone pays or nobody pays," he said.
He said that the NLA's plan meant that there would be a two tier system in which users of Google can access content for free but his clients, if pointed to newspaper websites through his search technology, will be expected to pay.
There is also anecdotal evidence that companies are abandoning paid-for media monitoring altogether in favour of operating their own Google alerts, though media monitoring companies say this gives nothing like the detail and precision that their services do.
Some companies don't even do their own scraping of used paper websites, they use third party agencies. So there are agencies springing up which are using web technology to deliver media monitoring services, and the NLA wants to license their activity. The trouble is, it doesn't even know how many of these companies there are.
Andrew Hughes: It is a bit difficult for us to know exactly who is receiving paid for aggregation service. We certainly think some, some of the people are existing companies where they have been using web aggregators to cover web sources, alongside using a press cuttings urgency to cover the original print sources. The good news is, for them, this is going to be a very simple and pretty cheap extension to existing licences. But clearly there are going to be some people who are have been using web only as a source and those will be new licensees.
So where does the law stand on all of this? Intellectual property law expert John Mackenzie of Pinsent Masons, the law firm behind OUT-LAW, said that it is highly unlikely that website operators have any rights to links to their material, but that no definitive UK ruling exists.
John Mackenzie: The action by the NLA, I think, illustrates the growing tension between websites looking to attract traffic to their site and also wanting to protect their content on the site. Of course, every website wants to attract as much traffic as it can. The UK Court's position is unclear on this point. Historically what we have seen is that the only case on linking itself the courts have said that there isn’t any copyright in a link itself, but that was a case involving an interim interdict before the Scottish Courts so I think we can regard this as untested.
Who can use what from newspaper websites and for what purpose is an issue that is currently being fought over in Europe.
Copiepresse, which represents Belgian newspapers, won a judgment against Google News by claiming that its scraping and caching of its members' material was copyright infringement. Even that isn't settled though, says Mackenzie.
John Mackenzie: I think what we are going to see is an increasing challenge to those websites that scrape the data from content providers. We have seen for example, a challenge against Google on the Google News service by a company in Belgium and what they allege is that the re publishing of headlines and story snippets is copyright infringement but that case is ongoing and we haven’t got the result yet so we would just have to wait and see what comes out of that particular case.
The media monitoring companies are still deep in negotiation with the NLA over the issue, and the new system is not slated to take effect until the start of next year. So there is plenty of time for the details to be hammered out. A major sticking point, one company said, could be that the NLA wants clients of monitoring firms to pay for licences as well as the agencies themselves.
Though the NLA's view is that it has a finished payment structure in place, it could still all look quite different by next January.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com. Make sure you tune in next week; for now, goodbye