News aggregator Newsbooster.com was on Friday ordered by the
Bailiff’s Court in Copenhagen to remove from its web site and
electronic newsletters all deep links to news articles in the web
sites of 28 Danish newspapers. It is also prohibited from
reproducing the headlines of the publications.
Newsbooster publishes the headline and a very small part of the
ingress of stories from various on-line newspapers. It provides a
link back to the actual story – the deep link – and gives credit to
the individual news publisher.
However, the Danish Newspaper Publishers Association only wants
links to the homepage of a newspaper’s web site, mainly because
bypassing the homepage of a web site can adversely affect
advertising revenue.
The publishers relied on the EU’s Database Directive of 1996
which was implemented into Danish law by amending the country’s
Copyright Act. This Directive introduced special copyright
protections for makers of databases. The court noted that the
Danish Parliament had described a database as:
"a collection of independent works, data or
other materials arranged in a systematic or methodical way or
individually accessible by electronic or other means."
Judge Michael Kistrup reasoned that:
"Internet media consist of, for example,
text collections in the form of articles, information,
advertisements, etc. The selection or compilation of relevant text
collections and the detailed display of such collections on the web
sites, which make up the internet media, must, in general, be
characterised as the result of structured systems or methods…"
He concluded that “the text collections of headlines and
articles, which make up some internet media, are thus found to
constitute databases enjoying copyright protection” under the
database laws.
He then quoted wording from the EU’s Directive:
"…databases requiring the investment of
considerable financial resources shall enjoy special protection
against extraction or re-utilisation of the entire contents of the
database or a substantial part thereof."
Judge Kistrup wrote that “Newsbooster’s search engine – and
therefore not the users – needs to crawl the web sites of the
internet media frequently for the purpose of registering headlines
and establishing deep links in accordance with the search criteria
defined by the users. As a result, Newsbooster repeatedly and
systematically reproduces and publishes the [publishers’] headlines
and articles.”
The reasoning of the Judge does not mean that deep links are
illegal in Denmark. This case looked at a web site that was
systematically trawling and linking to third party content – which
is not the same as manually creating occasional links to third
party sites.
Judge Kistrup also noted that Newsbooster has a commercial
interest in its activity – it charges annual subscriptions for the
services that sparked the lawsuit. He reasoned that as a
consequence of Newsbooster’s use of deep linking, it becomes, to a
certain extent, “unnecessary to search or browse the internet
newspapers” – which would affect the value of their
advertising.
The deep linking was also found to conflict “with fair marketing
practices” and therefore contravened the Danish Marketing Practices
Act.
Following the ruling, A spokesman for the Association said: “It
would have been difficult for newspapers to do business if the
bailiff’s court had reached the opposite result.”
Newsbooster immediately removed the links from its web site but
said that it will appeal the ruling. It warned that, if the
decision stands, it will affect the development of search engine
technology.
The decision only prohibits deep linking to the Danish Newspaper
Publishers Association’s 28 web sites. Newsbooster.com retains
links to 4,480 newspapers.
