The case has been running for two years. It began when German
newspaper publisher Mainpost sued news search engine NewsClub.de
for copyright infringement because it was linking directly to
newspapers’ on-line stories, bypassing the homepages of their web
sites.
Mainpost had previously sent a notice to NewsClub, demanding the
exclusion of its web site from the search engine.
According to NewsClub’s English report on the German court’s
decision, deep linking was said to violate the EU Database
Directive.
The Directive grants copyright protection to database creators
for “selecting and arranging” the information contained in
databases, even if they do not own individual copyrights on that
information. It also gives creators the right to control or
prohibit temporary reproduction of all or substantial amounts of
the database contents. The Directive, however, permits the
extraction of “insubstantial amounts of data”.
NewsClub argues that users receive a newspaper’s pages directly
from the publisher’s server with all the contents, including
advertising. It also claims that there is no in-frame linking and
each news headline includes the publisher’s name.
The arguments of the publishers and the reasoning of the court
are not disclosed in English by Newsclub.
Earlier this month, a Danish court ordered news aggregator
Newsbooster.com to remove from its web site and electronic
newsletters all deep links to news articles in the web sites of 28
Danish newspapers. It also prohibited reproduction of the headlines
of the publications. The court also dealt with deep linking as a
breach of the Database Directive.
The Danish court ruled that “the text collections of headlines
and articles, which make up some internet media, are… found to
constitute databases enjoying copyright protection.”
The Danish decision quoted 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 all deep links are
illegal in Denmark. That case looked at a system that was
systematically trawling and linking to third party content – which
is not the same as manually creating occasional links to third
party sites.
