Law could protect search engines from copyright
Jinfo Blog

14th January 2010

By Tim Buckley Owen

Item

Plans to restrict the use of hyperlinks in Britain could be thrown into disarray if a proposed amendment to the Digital Economy Bill, currently making its way through Parliament, is passed. Tabled in the House of Lords by the Conservative peer Lord Lucas, the amendment would have the effect of protecting a search engine from liability for copyright infringement. ‘Every provider of a publicly accessible website shall be presumed to give a standing and non-exclusive license to providers of search engine services to make a copy of some or all of the content of that website, for the purpose only of providing said search engine services,’ the proposed amendment states (http://digbig.com/5baxxp - amendment no 292). If approved, it could possibly vindicate the view of intellectual property lawyer Robin Fry, of Beachcroft LLP, that the fact that newspaper websites facilitate printing and downloads controverts the Newspaper Licensing Agency’s claim of the right to charge for the use of links (http://www.vivavip.com/go/e25207). But there are caveats. Firstly, the case currently before the Copyright Tribunal could well turn on the fact that the NLA is licensing not the use of links but the selling of them (http://www.vivavip.com/go/e27632) – and secondly, the amendment would still allow web publishers to provide specific evidence in machine readable form that they had not granted a licence for their links to be used. Law firm Pinsent Masons’ Out-Law newsletter says that this means publishers could stop search engines from indexing their pages by indicating their wishes in a robots.txt file placed on the site (http://digbig.com/5baxxr). In fact, Google has already effectively called publishers’ bluff by explicitly stating that all major search engine providers would comply with the use of such a file (http://www.vivavip.com/go/e22212). But it is a bluff? As Penny Crossland reports (http://www.vivavip.com/go/e27712), the Times Online has already blocked the aggregator NewsNow from linking to its content – and under the Bill’s amendment as currently worded, any other web publisher could do the same. There’s no guarantee that the amendment will be approved, whether at its current stage or when the Bill (designed to implement parts of the government’s Digital Britain white paper of last year – http://www.vivavip.com/go/e15927) goes to the Commons (you can follow its progress at http://digbig.com/5baxxs). Indeed, an early general election could conceivably scupper the measure altogether. But if it does fail, the fundamental issue for both information managers and publishers doesn’t go away. Are customers’ best interests served by protecting existing delivery media – or simply by protecting access to content however delivered?

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