The Quiet Road

Thanks to a tax-regime designed to encourage international investment (some would suggest “exploitation” as a more appropriate word), Ireland has successfully positioned itself as one of the world’s leading locations for high-tech and new media corporations. Google, Microsoft, Facebook, Twitter (and many others) have located their European or non-US headquarters in Ireland. The nation has derived some economic benefit from this, primarily with the provision of several thousand well-paid jobs, but less than might be imagined (thanks to that aforementioned policy of low corporate taxation).

Nonetheless, despite the emergence of Ireland as a major internet hub, there are large sections of society who have yet to fully enter the digital age. Most notably of course, our political establishment, but also certain commercial organisations that should really know better (I don’t expect our political establishment to know better because – quite frankly – I don’t have an awful lot of faith in the intellectual ability of most who inhabit it).

This ignorance of things digital within the political sphere was wonderfully illustrated on a recent news report on RTÉ news. It concerned the government announcement of an investigation into the abuse of social media (online bullying – or “trolling” as it was mistakenly called). This follows at least three recent suicides in Ireland which have been linked – either directly or indirectly – to online bullying. While those affected by these tragic deaths have my deepest sympathies, I was extremely uneasy when a member of the government appeared on the news to suggest a possible crackdown on online bullying by dictating how social media should be used in Ireland. His announcement that he would personally chair the committee which would recommend new “social media legislation” was accompanied by some stock footage of him at his computer. There he sat, staring at this thing on his desk as though it were an unexploded bomb, tentatively prodding the keyboard with a single finger. And I thought, so this is the guy the Irish government have chosen to set policy in the area of new media… no wonder the place is a fecking disaster area.

But then a few days ago, it emerged that the Irish government is positively ahead of the times when compared to the Irish newspaper industry (sorry for the bad pun, but it was impossible to resist).

All Your Links Are Belong To Us

Simon McGarr is a Dublin-based solicitor. His clients include Women’s Aid, a registered charity dealing with the issue of domestic violence against women. National Newspapers of Ireland (NNI) is an organisation which represents pretty much every newspaper in the country (national and regional). Recently, Women’s Aid was mentioned favourably in several newspaper articles (both online and in print). And as you would expect, they posted links to those online articles on their website. As you probably wouldn’t expect, however, they then received a demand from NNI that they pay a fee for each link to a newspaper website. Read Simon McGarr’s blogpost on this issue.

Now, you might think it perfectly reasonable that NNI should protect the right of their members to assert copyright over whatever content they publish. And you’d be correct. Everything I write on this blog is “copyright me (followed by dates)”. Though, as I mention on the About Me page, I’m generally more than happy to be cited in part (or even in full) so long as the citation is credited. Indeed, this is how online discourse tends to work and you’ll find this blog littered with extracts from newspaper articles, blogs and books along with a credit (and a link to the original source if it’s on the web). I know Irish copyright law doesn’t have an explicit “fair use” clause, but frankly I consider “fair use” to be an intellectual principle that transcends national laws and which – were we to lose it – would have an actively damaging effect on society as a whole (as well as pretty much bringing academia to an end).

All the same, I can just about accept the argument that permission should be sought prior to quoting someone else’s work. The argument is wrong, let me point out, and I won’t be bound by it unless you can demonstrate why it’s right… but nor will I think you’re completely insane if you attempt to forward it. However, that’s not the position of the NNI. No, their position is somewhat different. And it is completely insane.

The NNI is asserting that hyperlinks are themselves covered by copyright. That is; if I simply link to an article online without prior permission (like this) I have breached the copyright of the site being linked to (in this case The Irish Times). The NNI suggests that I now owe The Irish Times €300 (their cost for between 1 and 5 links). Although I have linked to more than five Irish Times articles during the lifetime of this blog, so I actually owe quite a bit more (€1,350 for between 26 and 50 links). And that’s an annual fee, let me point out, for a licence to link to those articles.

Now, the NNI very graciously inform us that they are prepared to waive this licence fee if the links are “for personal use”. But that doesn’t alter their claim that they are legally entitled to such payment, and doesn’t prevent them from withdrawing the waiver on a whim should they choose to do so. They are effectively saying to bloggers and users of other social media platforms that they may, at their discretion and on a date of their choosing, take legal action to recoup money from anyone who has ever linked to one of their articles.

Foot shooting and rampant extortion

Not only is this patently absurd, not only does it completely violate the spirit of the web, but it displays a quite stunning self-destructive tendency. Most online newspapers generate income from advertising. Therefore, it is entirely in their interest to maximise traffic to their site. If a website is republishing entire articles, then I understand the NNI and individual newspapers may lose traffic and as a result lose money. So it is understandable that they should seek to prevent this happening. However, by asserting that the simple act of linking to a newspaper article potentially places a person under threat of future legal action, they provide a massive disincentive to link to them. Given that those links are generating traffic, and therefore revenue, for newspapers; the NNI appears to be insisting that the online community act to reduce the revenue of their members, under threat of legal action and/or a hefty fee.

And no, their claim that they voluntarily waive the fee for personal websites is not as reassuring as they clearly think, as it still suggests that some future change in policy could land bloggers in their debt. Part of me wants to remove all links to Irish newspapers from this blog and begin actively campaigning that other bloggers and users of social media do the same. Get a big enough snowball rolling and I suspect the online community could significantly reduce traffic to newspaper websites. However, such a link boycott would also mean engaging the NNI on their own terms rather than dismissing their claim as the absurd nonsense it actually represents.

Personally I can’t exactly afford a protracted court case, but I would love the NNI to demand payment from this blog for the many links I have made to Irish newspapers. Because – as I pointed out at the start of this article – they clearly don’t have a robust understanding of how the web works. If they did, they would realise their position – if taken seriously – effectively means that the majority of, if not all, Irish newspapers are engaged in extortion.

“How so?” you ask. Well, it’s pretty simple really. Like almost every online newspaper on the planet, Irish newspapers place social media buttons on each of their articles. They actively invite you to click these buttons. However, not a single one of them includes a legal disclaimer to the effect that clicking on these buttons creates a copyright-protected link for which the reader may be charged a substantial fee. Even if that fee is waived, the NNI is insisting that a person clicking the “Facebook Like” button on an article in the Irish Times has placed themselves in debt to the newspaper and it is only the discretion of the NNI that prevents this debt being recouped.

I’m no lawyer, and perhaps “extortion” is not the correct legal term, but I’m pretty certain that tricking someone into debt by inviting them to perform an action without first telling them it incurs a charge, is probably illegal (yes, even in Ireland, where we seem to have made a national sport out of tricking the populace into paying large amounts of money to private corporations).

It seems to me that the NNI really hasn’t the faintest idea what it’s doing and is running the risk of damaging the very industry it seeks to protect. It is providing us with a significant incentive to stop linking to Irish newspapers – actively driving down traffic and revenue for their members – while at the same time is stating a legal position which appears to place their own members very much on the wrong side of the law.