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EU considers hyperlink Copyright

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Offline kat

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In an leaked document from the European Parliament it appears they are wanting to update and unify Copyright law across Europe so Rights holders receive "fair treatment" with respect to their intellectual properties(cf. Sec. 4 [1]). In particular EU law-makers are wanting to address some issues surrounding a class of 'ancillary rights', essentially indirect copyright, that have the potential to pull hyperlinks (URL links) under the protection of Copyright [2].

Essentially the idea behind the push for change is for content publishers, individuals and entities that author and publish content, want fair compensation under established Copyright law for the commercial exploitation of their material and/or properties by third-parties, i.e. search engines, news portals and other entities that aggregate the content of others rather than authoring or publishing their own [3].

The underlying concerns present something of a genuine paradox however because, although 'links' in of themselves are not deemed to be an infringement by European Court rulings [4], an author or publishers 'property' is still being commercially exploited to generate income by a third-party, whether or not the actual content or property is used or consumed, an article being read for example.

At its core the issue is not about denying end users access to content, or negatively affecting the individuals freedom to speak [5], rather figuring out a better mechanism through which content authors and publishers can be remunerated for the commercial exploitation of their material without undermining income or revenue generating efforts for all concerned that might otherwise be available under traditional, but dated, Copyright principles.

Taking a look at Google in this context for example [6], their primary product is not Google Search but the advertising sold within that space, the listing of others content being the primary mechanism through which this is achieved. Although Google claims 'fair use', the doctrine itself ('fair use') does not account for the situation presented by what Google is actually doing; the claim that individual listings display in search results in of themselves are not monetised, i.e. clicking a link, or a listing being placed on a page, does not in of itself generate income, whilst at the same time paradoxically claiming the page upon which links appear and surrounding area(s) are entirely Googles to monetise as they wish, without their necessarily being obligated to compensate content authors and/or publishers whose materials are used to generate and give that space meaning and value (worth it to advertisers). It's these types of complex and conflicting situations that create problems the EU is seeking to address.

With all this said however, the issue on what to do with hyperlinks in relation to Copyright opens up a minefield of litigation and frivolous, if not outright improper (incorrect), DMCA filings (something that's already a significant issue) as a result of parties not understanding the remit of 'fair use' doctrine, an abuse that cuts both ways. The status of links doesn't just affect the big players either, it's not a "stick it to the man" moment, even links to third-party content on sites like KatsBits potentially fall fowl of this issue. No-one would be immune from consequence should the amendments be too heavy-handed, especially were it to inadvertently facilitate what might essentially be a soft-coup over the Internet by entities with the reach and resources to actively protect their material leaving others in a quagmire squabbling over scraps.

Some Numbers
Putting some number on this type of situation might mean a typical click-through and ad-click rate of 1% with the latter generating $0.01p per click on advertising as applicable to Google Search. That might mean...

 - For a given website to gain 1000 click-through's from Google, Google might generate 100,000 search results pages (SERP) from which they may garner 1000 advert clicks (1% of 100,000), earning $10 (1000 x $0.01 cent = $10) [7].

 - On the other hand, of the 1000 click-through's gained from Google by the content hosts website, 10 might results in hosted advert clicks (1% or 1000 clicks on advertising displayed on the content hosts site), generating $0.10 cents of revenue (10 x $0.01 cent = $0.10 cents).

 - There might then also be 10 listings per search result page, each of which gain the same click-through rate and hosted advert clicks, i.e. all sites gain 1000 click-through's of which 10 subsequent clicks are on hosted adverts. That's $0.10 cents per 'host', per SERP page, totaling $1.00 (10 x $0.10 cents = $1.00).

Using these very basic numbers its possible to see the true extent of the issue and why there's a call for links to be reassessed in terms of their the commercial exploitation of intellectual property, however indirectly that might appear to be. Whilst there are points to be made for either side in terms of 'value' brought to the digital table (does Google search create value by using other people content vs would search exists without such content vs would content host sites exist), they are notwithstanding the fact that, at least in the primitive example above, for every $10 Google earns per results page $9 goes to Google, $1 to the author/publishers of the content used per page of Google Search [8], content that is (likely) not fully licensed in a traditional sense [9], thus not currently subject to remunerative compensation.


[2] European Courts rulings are not explicitly clear on the status of links, however, there is a general sentiment that they do not, in of themselves, constitute an infringement. However, context is important in relation to their use, which can be argued to fall under the auspices of 'fair use' doctrine where commercial exploitation is not a 'prima facie' reason for their being used.

[3] the format content is provided to the end user from their perspective should not be considered an issue as the primary concern is how content is used and exploited by commercial entities to generate income (intentional exploitation for commercial purposes). And in fact consider Google et al require that third-party use of their products be conditionally 'licensed' ('free' does not specifically mean 'free of *any* cost'), one cannot simply 'use' their products, agreements have to be made, even though their content may also be freely available. One of the problems seen with aggregation is that, compared to traditional news outlets like the Times, Washington Post etc., they do not explicitly have to license their content, aggregators by-and-large simply scrape content together using freely available resource (RSS feeds), and possibly against the spirit in which those resources were provided.

[4] to be explicitly clear on this point: the European Courts, in saying that "linking" is not an infringement, are referring solely to the act itself, i.e. the placement of a link on a third-party site that includes part or whole of an original articles title, or the use of a text citation from said, is not in of itself, an infringing activity because it can generally be thought of as 'excepted' under the concept or principle of "fair use" ("concept" or "principle" is used in place of "law" because few jurisdictions have an actual "Fair Use" clause akin to Title 17 of US Copyright Act, although most do have conditions that allow for similar usage). However, 'fair use' doctrine is usually only applicable in non-commercially exploitative circumstances.

[5] all too often Copyright discussions devolve into expectations that content should be free, or the freedom to speak is being impinged in some way, when this may not actually be the issue at hand. Granted the consequence of most, if not all, Copyright legislation filters down to the consumer (albeit often indirectly), however as mentioned in the main article above, there is no implied requirement for content to be intentionally withheld from the consumer/end user for the status of links to be addressed. Rather there should be recognition that original content is being intentionally commercially appropriated and exploited in a way that the original content authors/publishers are not being recompensed (as would the case for other forms of commercial use/exploitation of third-party materials). This necessitates that linking in of itself is not the issue (which can be argued to fall under 'fair use' doctrine where they exist), rather the concern is linking when intentionally used as a means to generate revenue.

[6] "click-through rate" refers to traffic from a search engine to host site, "ad-click rate" refers to events accrued from advertising. To make a point from the example discussed both are fixed values, whereas in reality the random nature of search results and individual advert payout varies a great deal, in other words revenue generation isn't as easily quantifiable across different host sites (destinations after click-through from a search engine). Google is used here as an example to explain the principle behind the problem because they are the most notable, and not for any particular reason beyond that; the same principle applies to any third-party scraping, referencing, or otherwise connecting to content, from the Internet and regurgitating it in different formats for consumption though intentionally commercially exploitative channels.

[7] for sake of simplicity numbers do not account for various 'revenue share' programs, few of which are available for public scrutiny, or other variables that affect earnings, programs that are only available to content publishers when they subscribe a given advertising service - this equates to a share of advertising revenues and does not constitute any agreement beyond that.

[8] figures are not concerned with how much of a given value is profit or loss, they are simply treated at face value, 'income', for the same of simplicity and the argument being made - no-one knows the full extent of profit and loss figures for Multi-National Corporations like Google, Microsoft et al.

[9] originally for content to be listed on Google, web sites had to be manually submitted which meant site owners had to agree to their sites being listed. This was not a remunerative compensatory agreement. It was also one over which Google had complete control. As Search Engine technology has improved over the years, manual submission is no longer needed, inclusion is often implied as a result of simply having a presence on the Internet. In this instance, no agreement or compensation can be had unless site owners sign up to specific service offerings by Google (which are not retroactive), or deny site access through 'robots.txt' (which third-parties are NOT obligated to comply with).