Modernising (Irish) Copyright Katseries #2: linking & marshalling as exceptions

Following earlier post on draft "innovation exception" proposed in the Irish Review Committee Report released on 29 October 2013, it is now the turn of examining the proposed provisions on linking and marshalling.

As IPKat readers know, whether linking falls within the scope of copyright protection (is it a communication to the public?) is currently an extremely heated issue.

Pending CJEU references in Case C-466/12 Svensson (here), Case C-279/13 C More Entertainment (here), and C-348/13 BestWater (here, but this case has been stayed pending the decision in Svensson), both the European Copyright Society (here and here) and ALAI Executive Committee (here) have released their (diverging) opinions as to whether linking should fall within the scope of copyright protection. 

Almost in parallel to this, a few months ago Germany adopted the controversial Leistungsschutzrecht für Presseverlege (‘LSR’, that entered into force on 1 August 2013), known in jargon as Lex Google (here, here). The newly created sections 87f, 87g and 87h of the Urheberrechtsgesetz (the German Copyright Act) provide for the exclusive (neighbouring) right of press publishers to exploit their content commercially for one year, thus preventing search engines and news aggregators from displaying excerpts from newspaper articles without paying a fee. Shortly prior to its approval, the text of the bill was amended to the effect that — contrary to the original proposal — no fees will have to be paid for displaying single words or short-text snippets. However, the text of the LSR does not clarify the length required to fall within this exemption. 

So, amidst all these discussions, what has the Irish Report to say in respect of linking and snippets?

"Interconnectedness by linking is at the very heart of the internet, so we recommend that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware [at the time he/she provided the link] that it connects with an infringing copy [unless the provision of the link is in the public interest, eg a news site that wishes to expose sites that stream pirated content]. We further recommend that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words".

Li(c)king: should it be an exception?

Linking

Starting with linking, this would be basically permitted as an exception to copyright, rather than something that per se does not fall within the scope of copyright protection. 

This conclusion appears supported by both use of the word 'exception' in some parts of the Report and the fact that - among other things - linking would be subject to new Section 87A to be inserted in the Chapter of the Irish Copyright Act dealing with exceptions.

DISCLAIMER: this Kat personally agrees with the position of the European Copyright Society that linking should fall outside the scope of copyright protection tout court. This said, how easy would be to demonstrate in practice that "the provider of the link knew or ought to have been aware that it connects with an infringing copy"? 

Snippets

Turning to the issue of snippets, the Report deals with them in the broader context of marshalling, ie a "neutral word ... to cover activities such as the indexing, syndication, aggregation, and curation of online content ... Effectively, marshalling is a development of linking, at least in as much as the marshalled text provides a content for the linked work."

The Irish Report considers that "[h]aving regard both to the locus of much online innovation, and to recent developments in Germany ... it would be a retrograde step not to make some provision for marshalling."

Hence, it recommends adopting "a very narrow marshalling exception, modelled on the German provision, but with more definitions and safeguards", to be included in proposed new Section 87A:

     (3) To provide appropriate context for a link ..., it is not an infringement of the rights conferred by this Part to reproduce reasonably adjacent to the link a very small snippet of the linked work; provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

     (4) It shall be a matter of fact and degree in any given case as to whether the criteria in subsection (3) are satisfied.

     (5) Without prejudice to subsection (4), where the work being reproduced is a literary work, then an extract which is

(a) no more than one hundred and sixty characters, and

(b) no more than forty words 

Did you say marshalling or marshmallow?

shall constitute a very small snippet for the purposes of subsection (3).
(6) Without prejudice to subsection (4), where the work being reproduced is a literary work, then an extract which is

(a) no more than two and half per cent of the total number of

words in the work, and

(b) no more than forty words

shall constitute a very small snippet for the purposes of subsection (3). 

With such detailed guidelines for literary works [by the way: where do those quotas and percentages come from? Does any reader know?] it appears difficult to say that whether a snippet infringes copyright is "a matter of fact and degree". In addition, one may wonder whether these "numbers" would resist technological change or have to be updated frequently instead.

Furthermore this provision leaves unresolved the issue of framing. It is questionable whether framed images from website operators that are visible on search engines might be considered as "very small" snippets [this concept has been inspired by the German LSR]. Since the Report suggests addressing marshalling as an exception to copyright, rather than something not generally subject to copyright, this is not an irrelevant question. In fact, can it be said that “small” snippets may infringe copyright? If so, can ISPs be held liable for displaying small snippets and framed images (note that the Report rejects the very idea of having a specific framing immunity for ISPs)?