Deep linking violates EU database law, German court rules

The case has been running for two years. It began when German newspaper publisher Mainpost sued news search engine NewsClub.de for copyright infringement because it was linking directly to newspapers’ on-line stories, bypassing the homepages of their web sites.

Mainpost had previously sent a notice to NewsClub, demanding the exclusion of its web site from the search engine.

According to NewsClub’s English report on the German court’s decision, deep linking was said to violate the EU Database Directive.

The Directive grants copyright protection to database creators for “selecting and arranging” the information contained in databases, even if they do not own individual copyrights on that information. It also gives creators the right to control or prohibit temporary reproduction of all or substantial amounts of the database contents. The Directive, however, permits the extraction of “insubstantial amounts of data”.

NewsClub argues that users receive a newspaper’s pages directly from the publisher’s server with all the contents, including advertising. It also claims that there is no in-frame linking and each news headline includes the publisher’s name.

The arguments of the publishers and the reasoning of the court are not disclosed in English by Newsclub.

Earlier this month, a Danish court ordered news aggregator Newsbooster.com to remove from its web site and electronic newsletters all deep links to news articles in the web sites of 28 Danish newspapers. It also prohibited reproduction of the headlines of the publications. The court also dealt with deep linking as a breach of the Database Directive.

The Danish court ruled that “the text collections of headlines and articles, which make up some internet media, are… found to constitute databases enjoying copyright protection.”

The Danish decision quoted the EU’s Directive:

"…databases requiring the investment of considerable financial resources shall enjoy special protection against extraction or re-utilisation of the entire contents of the database or a substantial part thereof."

Judge Kistrup wrote that “Newsbooster’s search engine – and therefore not the users – needs to crawl the web sites of the internet media frequently for the purpose of registering headlines and establishing deep links in accordance with the search criteria defined by the users. As a result, Newsbooster repeatedly and systematically reproduces and publishes the [publishers’] headlines and articles.”

The reasoning of the Judge does not mean that all deep links are illegal in Denmark. That case looked at a system that was systematically trawling and linking to third party content – which is not the same as manually creating occasional links to third party sites.