Newspaper Licensing Ireland Ltd asks Women’s Aid for money to link to newspaper websites

The following letter was sent on behalf of Women’s Aid to Newspaper Licensing Ireland Limited today. Our office is grateful to Fergal Crehan BL for his pro bono assistance in drafting counsel’s opinion.

Women’s Aid have agreed to allow us to publish their response in the hope that it may prove helpful to other non-profit bodies who may receive similar requests.

We have not charged any fee but if you feel like it, you can donate to Woman’s Aid to assist them in providing services to women who have suffered domestic violence

*****

Newspaper Licencing Ireland Limited

Clyde Lodge

15 Clyde Road

Dublin 4

;

Re: Women’s Aid

Dear Sirs,

We write further to the email of Ms. [redacted] of your office of the 2^nd April and subsequent emails and letter of the 3^rd April 2012.

We act for Women’s Aid in this matter. Women’s Aid is a registered charity, being a non-profit organisation dedicated to working against violence against women. Our client received, on or about the 27^th day of March, 2012, correspondence from Newspaper Licensing Ireland Limited, proposing that our client sign and return a licence agreement giving our client “permission to scan clippings for 16 national titles and 90 regional newspapers plus some foreign newspapers”

The letter continued by warning our client that should they fail to comply in circumstances where a licence was required;

“You will be breaking the law; you risk exposing your company to expensive litigation. Reproducing copyright content without permission is theft”

We understand that Newspaper Licensing Ireland Limited (“NLI”) is a not-for-profit, limited liability company established in 2002 to collect licence fees for the use of copyrighted newspaper material in Ireland. NLI states that it has been mandated by a number of national and regional newspaper titles to collect licence fees on their behalf.

Our client is a stranger to any such mandate, or any relationship between NLI and any news publication or other copyright owner. In the circumstances, we write seeking some further clarification on a number of matters.

Our client has confirmed that it does not scan or clip newspaper articles. However, as is common with organizations of this type, our client will often link, via its own website, to online publications which have given coverage to it or its campaigns. Such use of media coverage is a vital component of our client’s advocacy mission.

Upon entering into correspondence with NLI, and after it had sought to clarify the status of such links, our client was told that

“a licence is required to link directly to an online article even without uploading any of the content directly onto your own website”.

We would be grateful if you would specify the statutory basis of this claim by return of post.

We note that you have supplied a schedule of rates, depending on the number of stories accessible online from a licencee’s website. Under the heading Website Republishing you list the following

Bundle / Annual Fee

1-5 / €300

6-10 / €500

11-15 / €700

16-25 / €950

26-50 / €1,250

50+ / Negotiable

Can you please confirm by return of post that this is the payment schedule for the licence you have claimed is required to “link directly to an online article even without uploading any of the content directly onto your own website”?

As you are doubtless aware, Section 39 of the Copyright and Related Rights Act 2000 provides for a “Reproduction Right”:

—(1) References in this Part to copying shall be construed as including references to all or any of the following, namely:

(a) in relation to any work—

(i) storing the work in any medium,

(ii) the making of copies which are transient or incidental to some other use of the work;

(b) in relation to an artistic work, the making of a copy in three dimensions of a two dimensional work and the making of a copy in two dimensions of a three dimensional work;

(c) in relation to a film, television broadcast or cable programme,

making a photograph of the whole or a substantial part of any image forming part of the film, broadcast or programme;

(d) in relation to a typographical arrangement of a published edition, making a reprographic copy of the arrangement.

(2) There shall be a right of the owner of copyright to copy a work or to authorise others to do so which shall be known and in this Part referred to as the ‘‘reproduction right’’”

As is made clear in subsection (d), the scanning or transcribing and reposting of an article is encompassed within this right. However, nothing in this provision grants any right to a copyright owner in respect of linking to an article appearing on the copyright owner’s own website.

Furthermore, it should be noted that our client has been granted access to the articles linked to from its own site on the basis of the Terms and Conditions of the respective publications. Each of these publications has its own specific terms and conditions of use. However, as a number of the publications are part of the INM Group, they share a standard set of Terms and Conditions. These state:

“You are granted a limited licence solely for your own personal, non-commercial use to refer to, bookmark or point to any page within this website”

Linking is clearly intended by reference to “pointing” to web pages. This conclusion is strengthened by the text which follows, detailing the uses of material which are not permitted under the licence:

“Any other use of the Materials on this website, including any form of copying or reproduction (for any purposes other than those noted above) modification, distribution, re-publication, extraction, re-utilisation, incorporation or integration with other materials or works or re-delivery using framing technology”

Another publication, The Offaly Express, states the following in its Terms and Conditions (these are in fact the Terms common to publications of the Johnston Press, a UK-based newspaper group):

“1. Ownership. Except in the case of the Forums and any other content you create, the copyright in the Website and its contents belongs to the Publisher, or has been included with the consent of other copyright owners. Reproduction in any form, printing or downloading of part or all of the contents is forbidden save in accordance with the licence granted below.

2. Licence to copy for personal use: You may print copies of any item in hard copy provided that you do not edit alter amend or delete any part of it or combine it with other material. You may recopy the material to individual third parties for their personal information only if you acknowledge the Website as the source of the information by including such acknowledgement and the address of the Publisher and the Website in the copy of the material AND you inform the third party that the material may not be copied or reproduced in any way. You may not supply the material to any third party for commercial gain.

3. Web Aggregation: If you are a paid for web aggregator you require a licence to redistribute the content of this site. Licences can be obtained through the Newspaper Licensing Agency (http://www.nla.co.uk).

4. No Transmission. No part of the Website or the contents thereof may be reproduced on or transmitted to or stored in any other web site or other form of electronic retrieval system.”

The specific reference to paid-for web aggregators appears to exclude the requirement of a licence to link to stories on the part of persons or organisations such as our client.

The Irish Examiner states in its Terms & Conditions:

“you are granted a limited non-exclusive and personal licence strictly for your own non-commercial and private use to bookmark, refer to or point to any page within the Site, and to download the Content (with the exception of music) to a single personal computer and to print a single copy of the content.”

No right, title or interest in any downloaded materials or software is transferred to you as a result of, any such downloading or copying and Examiner Publications (Cork) Ltd reserves all rights in respect of the Content for itself, its subsidiaries, affiliates and advertisers. You must not alter or delete any copyright, trademark or other proprietary notices in or on any of the Content. You must not reproduce, publish, transmit, distribute, display or otherwise provide access to (including framing or linking to any Content or the Site), modify, create derivative works from, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Content, the Site, or any related software for any commercial purpose whatsoever. If you wish to use any of the Content for any commercial purpose (including any framing or linking to any Content on the Site) you must obtain the express prior written permission of the Irish Examiner or obtain an appropriate licence from Newspaper Licensing Ireland Limited (www.newspaperlicensing.ie ).”

Regardless of whether or not linking of any kind is protected by copyright, linking for non-commercial purposes is specifically permitted by the Terms & Conditions of all the newspapers in question.

Our client is a non-commercial entity and any and all links to online coverage which it may post on its own website are for the promotion of its non-commercial purposes.

In addition to the explicit licences contained within the Terms of Use of these publication’s websites, there is also the question of the implicit licence they have granted through the use of social sharing buttons and services.

In Ryanair Ltd v Billigfluege.de GMBH [2010] IEHC, Mr. Justice Hanna determined that certain clauses were binding on users of a website where they were “contained in the Terms of Use on the plaintiff’s website, highlighted by way of a hyperlink. In such circumstances, the Terms of Use on Ryanairs’s website were “fairly brought to the attention of the other party”. It seems that the Terms of Use were clearly accessible by way of a hyperlink which was at all times clearly visible to users of the plaintiff’s site. The Terms were not hidden in an awkward part of the screen or in any way concealed or difficult to find.”

Where the publications linked to from our client’s website have Terms of Use, they tend to be displayed via a hyperlink in small type at the bottom of each page. In a number of publications, this hyperlink is far less prominent than the social media and sharing buttons which increasingly are to be found in online publications.

By way of example, Independent News and Media plc publications generally display, under each story, a number of icons, clicking on which allows the story to be linked to on social media. Stories in The Irish Independent can be shared via almost 100 different internet platforms. The Irish Times offers over 300 ways to link to articles. In each case, the “sharing” takes the form of a hyperlink, often including the headline of the article, and a short abstract. This abstract generally runs considerably longer than the 11 words the subject of the European Court of Justice’s decision in Infopaq International A/S v Danske Dagblades Forening (Case C-5/08).

Given the prominence of these sharing and social media buttons on the websites of publications, they can be taken to form part of (if not to entirely supersede) the Terms of Use of the websites and their content. It should be noted that these social media buttons allow sharing not only via personal social media sites such as Facebook and Twitter, but also via website design platforms such as WordPress. In all cases, these platforms can be, and increasingly are used for commercial as well as personal purposes.

We note that in your email of the 2^nd April at 10:02 am, Ms. [redacted] of your office states

“Everything as it appears in a newspaper (both hard copy and online) is the copyright of the publisher not the author.”

We would again be grateful for your assistance in this matter, as our client is a stranger to the specific contractual agreements between the author of any specific article and the publisher of same. It is therefore impossible for our client to know which articles may have been written by an employee of a newspaper and which by a freelancer.

We are mindful in raising this question of Section 23 of The Copyright and Related Rights Act, 2000, which provides

“23.—(1) The author of a work shall be the first owner of the copyright unless—

(a) the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary,

(b) the work is the subject of Government or Oireachtas copyright,

(c) the work is the subject of the copyright of a prescribed international organisation, or

(d) the copyright in the work is conferred on some other person by an enactment.

(2) Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose, other than for the purposes of making available that work to newspapers or periodicals, without infringing the copyright in the work.”

Our understanding has been that the effect of this provision is that Newspapers are the first owners of copyright in the materials they publish, but only where the author of the article is an employee. Where, as is very often the case, an article is written by a freelance journalist, our understanding has been that the journalist retains copyright unless she specifically waives it. We assume the publishers on whose behalf you act have supplied you with such waivers in relation to all articles under discussion in this correspondence and we would be grateful if you would supply our office with a copy of same.

In the alternative, if your organisation also acts as a collection agent for freelance journalists, we would be grateful if you could confirm that this is the case, and identify those who have made such an agreement with NLI.

Our client is committed to working within the law in all that it does and we would request that you might set out clearly in your reply those statutory provisions requested so that our client may clearly assess whether it requires to purchase a licence from your agency.

In the alternative, you may wish to confirm that our client’s activities are not those for which a licence of the sort you are empowered to provide is required.

Yours faithfully,

;

________________

McGarr Solicitors