On 24 October 1996, Lord Hamilton gave in a Scottish court a preliminary interdict (equivalent to injunction in English law) to prevent the Shetland News, an Internet based newspaper, from offering links from its WWW pages to those of its rival Internet newspaper, the Shetland Times. Right now, the Shetland News is appealing for funds to help fight the case in 1997.
The wording of the interdict includes the following key text (I trust I am not infringing copyright by reproducing it):
"... Interdicts the Defenders, their employees, agents or anyone acting on their behalf or with their authority from (1.) storing in any medium by electronic means or otherwise copying or (2.) including in any service operated by the Defenders on the Internet any headline, text or photograph from any edition of "The Shetland Times" newspaper or the Pursuers' Internet web site www.shetland-times.co.uk..."
Robert Wishart, the managing director of The Shetland Times Ltd. commented on this preliminary injunction with the following statement:
"Recent statements by Dr Jonathan Wills [the Editor of the Shetland News] are an attempt to lay down a smoke-screen over the issues. We took action to prevent him presenting our news stories as part of his web site. These stories are gathered by professional staff at considerable expense to the company."
Put simply, this is an argument over whether a publisher on the Internet retains copyright in any material once it goes "on-line";. My view is that by incorporating our copyright material into his news service he infringes our copyright. The technical process by which this is achieved is irrelevant.
How Dr Wills arrives at the conclusion that the ruling makes the Internet in its present form illegal I don't know. There is no restriction on "free" access to the Internet and we would be perfectly happy with a proper link to our home page so that readers can have access to our reports in their intended context.
Our successful action at the Court of Session demonstrates that this is by no means a "frivolous" action as claimed by Dr Wills. On the contrary it is a case which will be of vital interest to every publisher on the Internet. Had our action failed it would have meant that the Copyright, Designs and Patents Act 1988 would no longer apply to any material published on the Internet.
I have every confidence that if Dr Wills wishes to pursue the matter we will receive support from other publishers on the Internet.
It is quite clear that Shetland News were driven to this action because they were unable to provide a proper news service on their own. In the meantime we will continue to develop our Internet site as a quality product.
Dr Wills' attempts to use his web site to generate nuisance mail and phone calls is exactly the sort of infantile action I have come to expect from him. We really should be arguing about the principles involved. As a part-time journalist himself one would have thought he would have some understanding of the protection which copyright laws offer to writers and publishers."
A lot of fuss has been made regarding this interim injunction, with headlines about "this means the death of the Web". Nonsense. Where where the grant of an interlocutory injunction is concerned, the party seeking the injunction undertakes to provide compensation should that matter proceed to trial. Therefore, the court can afford to be "generous"; in its ability to grant interim injunctions, as all the court considers is whether there is an issue to be tried, and then considers the "balance of convenience". It does not consider the rights and wrongs of the case in terms of matters of law. So the preliminary injunction is simply a confirmation that there is a possible case to answer - and indeed, as the discussion below shows, there may indeed theoretically be a case to answer!
There is the background. What are the implications of this little spat, which has received wide publicity, including an article in New Scientist and an item on BBC TV News on 6 December? The first thing to be aware of, is that the two individuals concerned, Dr Wills and Mr Wishart, have a long history of disputes; some years ago Jonathan Wills was editor of The Shetland Times, and was dismissed, which resulted in an out-of-court settlement, paid by Robert Wishart to Dr Wills, to prevent a hearing for unfair dismissal. So, it is clear this argument is as much to do with personalities as it is to do with copyright. But what about the rights and wrongs of the case?
Under copyright law, even storing the text of material temporarily on a hard disc is, technically, infringement. Certain proposals being discussed by WIPO (World Intellectual Property Organisation - the body that largely controls international copyright law) in December in Geneva would, if passed, make this even more explicit but the truth is, UK law is already pretty explicit on this point anyway. (I will write an article for Ariadne on the WIPO conference in due course.) However, in order for infringement to be proved, the person making the complaint must prove that his material is indeed a Literary Work as defined in the Copyright Act, that the defendant had copied all, or a substantial part of that Literary Work, and that none of the standard user permissions applied. The complainant must also demonstrate that there was no implied license to copy the material.
The defendants "simply" linked their Web pages to those of the other company. The user clicks on the hypertext link and is transferred to the other newspaper's pages. They were not copying the full text of the articles; only the URL and the title of the article.
So the first hurdle for Mr Wishart is to demonstrate that his URLs and the headlines of his articles are "Literary Works" and are therefore worthy of copyright protection. This is not an insignificant hurdle! A work needs to have some substance to enjoy copyright. Many UK Court cases have confirmed that to quote or copy a part of a sentence, or a single word, is never infringement. Song titles and advertising slogans cannot enjoy copyright. Can a single sentence, such as a newspaper headline, enjoy copyright? This probably depends on the length and uniqueness of the sentence. Looking at the headlines that were copied in this case, I would doubt very much that they would enjoy copyright, but it is just possible that they would.
What about the URLs? It is well established in UK law that there is no copyright in a single fact, although there is copyright in a compilation of facts. Since the number of URLs copied by the defendants represents only a very small proportion of the total number of URLs on the complainant's WWW pages, it is unlikely that any action claiming there was infringement of copyright in a database of URLs would succeed.
So, to sum up this stage of the argument: it is possible, but unlikely, that the single sentences in question would be regarded as copyright; it is possible, but unlikely, that the small number of URLs copied out of the large number possible would be considered sufficient significant that a substantial part of the database of URLs (which, being a compilation, is a Literary Work worthy of copyright) had been copied. In any case, I am not sure that Mr Wishart had developed a clearly identified database of URLs; it is far more likely that they simply were individually associated with particular stories; if that is the case, then the defendants were entitled to copy these facts to their heart's content.
So Round 1 may go Mr Wishart's way in the full Court hearing, but this is not certain.
But this is not the end of the story. Even if Mr Wishart can prove the material in question is copyright, he now has to overcome the defences that the defendants will suggest. These are: were we entitled to copy under "fair dealing" and/or there was an implied license to copy?
One can "fair deal" - in other words one can copy a Literary Work without having to ask permission or pay a fee - as long as it is indeed "fair" (in other words, does not damage the legitimate commercial interests of the copyright owner) and as long as the copying is for one of several permitted purposes. It must pass both tests to be permitted. In a section below ("What if Mr Wishart wins?"), I consider the financial damage to the complainants, and conclude they have suffered no financial damage. So the defendants pass the first test. They also pass the second, because one of the permitted purposes for fair dealing is for "reporting current events". The Courts have shown themselves generally sympathetic to newspapers that copy for this purpose, because they have a concern that freedom of speech will be prejudiced if newspapers cannot report current events. It is normal too, for one newspaper to have an "exclusive" and for other papers to copy the material in later editions; this is considered to be fair dealing.
I would therefore conclude that the defendants have a cast iron defence of fair dealing.
What about the question of implied licences? It is a defence against an infringement action that there was a clear implied license to copy. If I write a letter to the Editor of Ariadne, there is an implied licence for the editor to reproduce that letter in the journal. In general, as regular readers of this column will know, I warn against relying on this as a defence, as it is only rarely applicable. However, this may be a case where it is applicable. Consider the facts:
The copyright owner made a deliberate choice to place his Web site online, with full knowledge (presumably) of how the system operates. Linking of Web sites to one another is extremely common and is, arguable, both the raison d'etre of the WWW and the reason for its success. It is custom and practice, and so if a copyright owner puts up a Web site, he MUST expect others to link into his site. Services such as Web search engines could not operate without this ability.
When someone opens a shop, they expect people to walk into the shop. Customers do not have to get permission from the shop owner, to go inside, even though they are entering private property.
Permission is inferred, by the presence of the shop, and that the door is unlocked. This is how most shops operate by custom and practice. If you don't wish people to walk into your open shop, you should clearly state that fact, at the shop's entrance.
When someone opens a public WWW site, they must expect people to put links into their site, and for them to put links to other sites. The system was designed to work like this. Permission for any links (I think) is therefore granted by implication, owing to the very presence of that site. If you do not wish to have such links made, you should clearly state this fact, at your web site's entrance.
I have said it many times in presentations and it articles, but I will say it again: if a copyright owner is worried that his material will be copied on the Web, he has one simple choice: do not put your material up on the Web!
So, to sum up my view of the case; it is possible - just possible - that the Court at its full hearing will agree the text copied is worthy of copyright protection. Even if it does decide this, the defendants have two excellent defences - that they were fair dealing, and that there was an implied license to copy. In my view, the defendants have a 99.999% chance of winning their case. But what if I am wrong?
Copyright law allows for two things - an injunction, and damages. An injunction stops the guilty party from continuing to infringe. To claim damages, the complainant must either demonstrate a loss of sales or profits, or must demonstrate that the defendant had made profits out of his infringement. Since both the newspapers are available for free on the Internet, there seems to be no basis at all for suing for damages. Copyright law also makes certain actions liable for criminal penalties; these include deliberate piracy (selling infringing goods), or malicious intent to damage the sales or market position of the injured party. Since neither party is, as far as I know, making income out of their respective Internet offerings, criminal issues do not enter the case. As far as market size is concerned, Dr Wills' paper had, according to data I have seen, the lions' share of accesses and was, in effect, giving free advertising to Mr Wishart's paper. (The Shetland News is read 4,500 to 8,000 times a day, whereas The Shetland Times site was only getting around 500 to 600 hits a day.) They gave Dr Wishart's paper a bigger readership, and as such were positively enhancing their market position. (For the short time the links were in place, the Shetland Times hit rate reached 1,000 per day.) The defendants are the bigger, and stronger Web site in terms of readership, world-wide coverage, advertisers, etc. The Shetland Times had no advertisers paying them at the time of the action, whereas the Shetland News had several. Incidentally, the Shetland News went live on the Internet in November 1995, and the Shetland Times in March 1996.
So in practice, if the Shetland Times wins, it would not win money, but would win the injunction. This, of course, would have a "chilling" effect on the development of the WWW in the UK. (The decision would have no effect abroad.) People would be reluctant to put links between their service and any other WWW pages for fear of problems based on the precedent. This could seriously damage the development of Internet services such as search engines, as well as WWW developers generally. Whilst not going as far as some commentators have on this topic, I have no doubt it would seriously damage the long term development of the WWW in the UK. That is not, of course, a problem for the Courts. They take no regard of such issues; they just look at the niceties of the case in hand.
You may wonder if Moral Rights apply to this case, as I discuss them so often. They do not; the Copyright Act makes it clear they do not apply to material appearing in newspapers, magazines or periodicals.
The Shetland Times is at http://www.shetland-times.co.uk/st/
The Shetland News is at http://www.shetland-news.co.uk/
Finally, I am quite prepared for the possibility that either party might sue me for infringing the copyright in their URL, or in any of the public statements they have made. [Editor: Yep, and you are on your own, Charles :-]