Belgian publishers: taking copyright enforcement to the next level

Belgian publishers plan to enforce copyright on online newspaper articles even stricter. This is the message told by a full-page ad campaign (PDF) published in several Flemish newspapers.

The Flemish newspapers (in their own words) already had ‘pretty strict copyright rules’, but apparently these are not sufficient ‘in the digital world’. The recently drawn up new rules for digital reuse of online content state that only non-commercial parties may deeplink to a newspaper article on condition that:

• No more than the title and 150 characters(!) from the article are duplicated (which is about two sentences)
• No photos are duplicated,
• The link clearly states a) the name of the newspaper, b) the full title of the article and c) the date,?
• There is no framing, and
• Insurance is given that the link will be removed in thirty days (‘freshness and quality’ clause).

The Flemish newspapers’ new enforcement plans are received with much criticism. Some argue that the newspapers ‘still do not understand the internet’.

I would cautiously (since I'm not aware of the Belgian copyright situation) like to add that it is uncertain whether this kind of contractual exclusion of (statutory) copyright limitations should or could be limited through contractual means - which seems to be our ‘theme of the week’.

The European Copyright Directive provides that EU Member States may adopt legal measures to limit copyrights reproduction and distribution rights for a number of purposes. One of these is "quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose" (Article 5, paragraph 3, sub d).

For example, if a Dutch newspaper (commercial purpose) would refer to a startling comment (five sentences long) of a Brussels EU Commissioner (legitimate purpose) in a Flemish newspaper, while ‘only’ naming the newspaper’s name with a link to the original news article (where the date and the name of the author are listed), this would be contrary to the Belgian newspapers new rules. Permission could be obtained, but would probably require some pecuniary compensation.

Clearly, the European provision does not hold a precondition to the quote’s nor to the exact length of a quotation or the deeplink’s 'shelf life'. One of the crucial criteria appears to be whether the quote is in accordance with fair practice. In the Netherlands the legal measure for a quote is whether it is consistent with that what rules of social intercourse would reasonably permit. This means that the proportion and scale of what has been quoted, should be justified in relation to the objective to be achieved. Can a natural or legal person contractually limit these (statutory) copyright exceptions?

Besides copyright concerns, one could also argue that such agreements unnecessarily limit constitutional rights to freedom of expression and information exchange.

Moreover, there is also the question how the newspapers would prove that users are bound of the new rules, since they are not included in the terms of use for readers of for instance De Standaard and De Morgen that participate in the ad campaign.

Reprocopy will oversee the protection of copyright and compliance with the new rules for digital reuse. In the Netherlands Cozzmoss holds the honour of performing these tasks on behalf of newspapers Trouw and De Volkskrant. Cozzmoss does this in a way that often turns bad blood, immediately sending letters by their lawyer claiming very high damages and other compensation (PDF).

Taking up (legal) action against the online reuse of digital information and linking to websites seems to be quite the issue in Belgium. Earlier the Belgian national railway company also objected to the reuse of its online train information by a Belgian website owner who made the travel application iRail.

Source: Tweakers