No Links Please, We're European

Newsbooster's idea was a simple one. The Danish company combed through the Web sites of local newspapers for stories of interest to its subscribers, and sent regular e-mails of links to those stories, based on its customers' preferences, allowing them to quickly and easily get the information they needed. To many, that sounded like a good deal. But to one Danish judge, it sounded like a crime. On July 5, a Copenhagen court ordered the news-search agent to stop its subscription service. The order came in response to a complaint from the Danish Newspaper Publishers' Association, or DNPA. Newsbooster's crime was to bring its users directly to newspaper news stories by so-called deep links.

The DNPA's position is that those linking to member's Web sites from the outside on a systematic basis, such as news agents, must send readers to the papers' homepages, not to specific stories "deeper" in the companies' Web sites. By sending them straight to the stories Newsbooster was, according to the argument that prevailed in court, both violating the papers' intellectual-property rights and depriving them of the ad revenue they would receive from making people navigate through multiple pages to retrieve the stories they wanted to read.

To many Internet users, these "deep links" are the very stuff of the Internet; the idea that they might be controversial will come as a surprise. But to those knowledgeable of EU intellectual-property law, the Danish court ruling was no shocker. The Copenhagen jurist based his decision on the EU's directive on the legal protection of databases, which was approved in 1996 and has since been implemented in the legislation of all member countries.

The directive protects database owners who have made a "substantial investment" in producing the database. The intention is to prevent others from extracting or reusing the whole or substantial parts of the database. But even extraction of insubstantial parts of a database violates the directive if it occurs repeatedly and systematically, as was the case with Newsbooster. Under national legislation resulting from the directive, what can be said to constitute a database worthy of protection? Court practice has ensured that the investment level necessary to qualify as "substantial" is set very low. In one case in Germany, the bar was set so low as to be absurd: A collection of 251 alphabetically ordered Web links was deemed to have required substantial enough investment to be protected. Apart from what warrants protection, there is the question of how far that protection extends. If a Web site took something someone else had written or compiled and reposted it on another site without permission, it would be a clear violation of the author's rights. Under EU law, however, databases such as Web sites are protected so strongly that not only are the stories themselves protected, but how someone else refers to them can become a crime. It is as if one were allowed to cite a passage in a book, but not the page on which it appears, forcing would-be readers to comb through the entire volume to look up the quote.

The Danish Newsbooster case has come to symbolize the fight for the principle of deep linking. After all, the World Wide Web's success is based on the ability to post hyperlinks. What's more, registration requirements or even subscriptions can be an effective means of controlling how users enter one's Web site. In light of that, the attempt to control how one refers to publicly available Web pages seems to many to strike at the very heart of the Web.

Even so, the Danish case is by no means unique. The German news search engine Newsclub was brought to court by the newspaper group Mainpost, and lost in a lower court instance in Munich. And back in 1998, a court in Berlin decided in favor of the Web portal Berlin Online in a case against a search engine that systematically searched the classified ads from the Berliner Zeitung newspaper and delivered the results in emails to users.

A general problem resulting from the strict interpretation of the directive is that new and user-friendly products, creatively taking advantage of technology, are removed from the market or never even reach it. So far, none of the major Web search engines have been taken to court for violating legislation based on the directive. The court cases have mostly targeted smaller players.

But even the most popular of search engines, Google, may be endangered. Last month, Google launched its free "Google News" service, which relies on precisely the same principle that got Newsbooster and others hauled into court. Google News combs through the Web sites of thousands of newspapers and automatically selects what it considers to be the top stories in a variety of categories. The headlines are updated several times an hour. Obviously, such a service is worthless if Google can only link to the front pages of newspapers' sites. Google and its peers can deliver updated and precise search results to users only by continuously searching and indexing the different Web sites (or "databases," in the parlance of the EU directive). In other words: They repeatedly and systematically extract content from the databases, which would appear to be the activity that the directive aims to restrict.

"Not allowing search engines would severely limit the freedom of expression and information," says Bernt Hugenholtz, professor of information law at the University of Amsterdam. He acknowledges that it is possible that Google could lose a court case, adding that it is "a very disturbing thought."

At present, a lot of uncertainty surrounds the law based on the database directive. Few of the cases have reached higher courts yet. According to Prof. Hugenholtz, the final word on many of the notions derived from the directive must come from the European Court of Justice.

But instead of hoping that the court can bring sanity to a bad law, the European Commission, member states and citizens should start debating a revision of the directive right away. The opportunity to do so is here: Recently, law firm NautaDutilh completed a study of the directive, at the request of the commission. Based on the study, the commission is required to produce an evaluation report of the database directive, to be presented to the European Parliament and the council of ministers.

One path to a looser regime is suggested by Prof. Hugenholtz: Turn the directive into an unfair competition statute. That would protect database owners from outright piracy, as the courts would retain an option to clamp down on parasitic behavior. At the same time, benign linking would be protected. Courts would only take action if copying would threaten a product's existence. "That kind of protection is what database producers really need," Professor Hugenholtz says.

This solution wouldn't stop database owners from complaining against deep linking practices altogether, but the threshold to pass to win the cases would be much higher as harm would have to be shown. And users would still have the possibility to do fast and efficient searches through the ever-expanding Web for facts, news and views. Even using Google.

Published in the Wall Street Journal Europe, October 14, 2002.

Copyright © Olav Anders Øvrebø.