Linking as a Copyright Problem – Report of the Finnish Copyright Commission
Docent in Commercial Law, LLD, Senior Researcher, University of Helsinki
Linking is one of the major copyright problems brought about by digitalization.
The Finnish Copyright Commission, chaired by Professor Niklas Bruun, published its final report on 24th January 2012. One of the many issues discussed in the report was commercial linking. The Copyright Committee decided to commission a study on commercial linking from the author of this article.
In the study I assessed the feasibility of the various possibilities of setting rules concerning commercial linking. Naturally, one important aspect was to consider these possibilities in the framework of the EU copyright directives and international conventions. I only covered cases in which the linked material itself is legitimate, that is to say made available on the Internet by or with the consent of the rightholder.
New techniques, new problems
Linking is one of the major copyright problems brought about by digitalization. The situation is far more complex today than, for instance, five or ten years ago, as new types of business models and services based extensively on linking have been launched. A recent phenomenon is the systematic commercial exploitation of material under another’s copyright by using advanced linking techniques.
There is an ongoing discussion on possible legislative measures to tackle such problems for instance in Germany. The services concerned include, to name but a few, search engines, feed readers, news aggregators and mash-up sites.
Various automatic systems, such as RSS (Really Simple Syndication) feeds, as well as the crawling technique are utilized. Services are constantly developing: for instance, so-called second-generation aggregation services are producing new, personalized products by using linked material.
In the current European legal doctrine, the linking technique used has gained a significant role in the assessment of linking as a copyright issue. This approach, however, often leads to arbitrary results when considering the balance between the legitimate interests of rightholders and, for instance, freedom of speech and free dissemination of information.
Implied license for linking as a possibility
In my study, I discussed four possible options. One option was that the national legislator would refrain from addressing problems caused by commercial linking. Another was that the national legislator could set specific rules on linking, or rules classifying linking as a form of communicating the work to the public.
A problem with such provisions is, however, that they would only confer additional protection for rightholders. Therefore, achieving balanced outcomes would be a challenge.
One possibility that I considered promising was to adopt presumption rules concerning implied license for linking. Applying the implied license doctrine means that linking can be permitted, even when the rightholder has not given explicit consent, where implicit consent is presumed.
A starting point is that a rightholder, in making copyrighted material freely available on the Internet, tacitly consents to third parties linking to that material. However, there is disagreement in European legal practice on the applicability of the implied license doctrine.
Three criteria for guidance
The starting point should be an evaluation of the overall circumstances in each case. However, a presumption rule could set guidelines for the assessment of cases in which the result of that evaluation would be inconclusive as to the existence of an implied license.
The rule could be based on making a distinction between linking for loyal and disloyal purposes, whereas the linking technique should not play a significant part in the assessment.
If more explicit guidance would be needed for the assessment of whether linking is loyal, the following criteria could be used:
1) Is the linking commercial or is there no intent to gain economic advantage?
2) Is the service that uses links based entirely on systematic linking or is the linking occasional in nature?
3) Is the linked material selected mainly by the service provider or by the user?
The last criterion is important in making a distinction between genuine search services and services using linking techniques as tools for content production. For instance, the user makes the decisive choice when typing a search term into search engine service even though the material is subsequently indexed by the service provider. The user is similarly active when using feed readers and some of the so-called second generation aggregation services.
Legal framework for the EU level
In addition, collective licensing arrangements could be considered especially for news aggregation services.
I also assessed the possibilities to develop a legal framework on linking at the EU level. Because national rules can not restrict the rights conferred by the Information Society Directive, it would be easier to reach balanced outcomes at the EU level.
A criterion similar to that used in the assessment of the purpose of linking – whether it is considered loyal or disloyal and, if necessary, the three more precise criteria mentioned above – could also serve as a starting point in the EU copyright context.
Naturally, the requirements set by, for instance, the three-step test included in international copyright conventions, should be respected.
Guidance for the Courts
The Copyright Commission discussed these options. It decided not to propose any revisions to Finnish copyright law relating to linking for the time being. The Commission stated, however, that the study would provide guidance for courts in their assessment of linking-related copyright cases.
In this assessment, a crucial factor should be the impact of linking on the legitimate interests of rightholders as well as on users’ possibilities of gaining access to valuable content in electronic form, rather than the linking techniques used.