NEWS PORTALS AND NEWSPAPERS - “FAIR USE” OR CLEARANCE OF RIGHTS
Online news portals aggregate text and pictures from news sources and use such content on their portals. The question is whether or not such use is legal without clearance. In our article we indicate that clearance is necessary.
The use of source content by traditional search engines and web directories has in general been accepted by content providers. Both parties have seemingly derived mutual benefit from each other. Compared with traditional search engines and web directories, news portals utilize the source content to a greater extent and by more sophisticated means. From a legal perspective it may strongly be argued that such use of copyright protected content by news portals, generally speaking, is an infringement of copyright (in addition to copyright related rights and marketing legislation) unless such use is cleared with the rightholders.
The news portals do unquestionably make reproductions of content protected by copyright and make such reproductions available to the public. In general, news portals reproduce the heading and parts of the news article, and provide a link to the full news article. Some news portals reproduce pictures obtained from other sources than the text to which they are combined. The reproductions are made available by organized categories or as search results. The users are provided with advanced functionality with regards to customization of the categorized presentation and advanced search options. In order for such reproduction and making available of the reproductions to be legal without clearance, exceptions to copyright must apply.
Whereas U.S. law contains a general "fair use" exception to copyright, both the EU Copyright Directive 2001/29/EC (“EUCD”) and the Berne Convention contain specific exceptions which shall or may be implemented into national legislation. The relevant exceptions/limitations in this regard are EUCD Article 5(1) (transient or incidental copying), EUCD Article 5(3)(c) (reproduction by the press and making available of published articles), EUCD Article 5(3)(d) (quotations) and Article 10 of the Berne Convention (quotations). In addition to specific conditions, these exceptions/limitations are further subject to the three step test set forth in EUCD Article 5 and Article 9(2) of the Berne Convention, which limits their application to certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interest of the rightholder.
It is questionable whether the use of copyrighted content by news portals in general fulfils the various conditions to these exceptions/limitations, including the three step test. Unlike the relation between traditional search engines/web directories and online news papers, the news portals appear not only as a directory to news sources, but as a supplement to the front page of online news papers, due to the vast amount of quotes, the combination of text and pictures and the advanced functionality provided. The legitimate interest of the rightholders may on this basis be prejudiced by use of their material on news portals. News portals counter-argue that online news papers may easily opt-out by deploying technical standards like robots.txt and metatags in order to prevent news portals’ indexation of their content. Such argument is however legally inadequate as long as relevant legal sources does not acknowledge implied license to online material.
Belgian courts have for the time being ruled against Google Inc’s use of news articles both on google.be and news.google.be in a case brought on by Copiepresse (an association for media companies). In Norway the sister organization of Copiepresse has argued in a similar manner and claimed that use of news content on news portals is an infringement of copyright if clearance is not carried through.
Although European law does not contain a general fair use exception, the various exceptions are to some extent based on an assessment of fairness and a balancing of interests of both the user and the rightholder. The actual conduct of the newspapers may influence the evaluation of said principles, and lack of action from these rightholders may therefore eventually backfire.
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