STUDIO
LEGALE
Avv.
STEFANO COMELLINI
Via Bocca di Lupo, 19
- 40123 BOLOGNA
Decisione
28 agosto 2000
della
Corte Distrettuale di Rotterdam
THE DISTRICT COURT IN ROTTERDAM
Case/Docket
number: 139609/KG ZA 00-846 - Judgement of August 22, 2000
IN THE NAME OF THE QUEEN
The President,
judging in summary proceedings
in the case:
between:
1. ALGEMEEN
DAGBLAD B.V., a private limited liability company organized under Dutch Law;
2. NRC HANDELSBLAD B.V., a private limited liability company organized under
Dutch Law;
3. TROUW B.V., a private limited liability company organized under Dutch Law;
4. DE VOLKSKRANT B.V., a private limited liability company organized under Dutch
Law;
5. HET PAROOL B.V., a private limited liability company organized under Dutch
Law;
6. ROTTERDAMS DAGBLAD B.V., a private limited liability company organized under
Dutch Law;
having their
registered offices in Rotterdam, the Netherlands;
plaintiffs;
proxy attorney: F. Waardenburg;
attorney: J.I. Krikke in Amsterdam;
and:
1. EUREKA
INTERNETDIENSTEN, a partnership,
having its registered office in Rotterdam;
2. [name]
residing in [residence]
3. [name]
residing in [residence]
defendants;
proxy attorney: F.A. Tromp;
attorney: D.J.G. Visser in Amsterdam.
Plaintiffs
will be hereinafter jointly referred to as "the Newspapers" and
defendants will be hereinafter jointly referred to as "Eureka".
1. The course
of the proceedings
This becomes
apparent from the following procedural documents, submitted by the parties upon
requesting judgement:
- the writ of summons;
- the pleanotes and exhibits of J.I. Krikke;
- the pleanotes and exhibits of D.J.G. Visser.
During the
session, the parties had their positions argued more detailed by the attorneys.
2. The facts
Considering
the uncontested statements of the parties and the exhibits, the President
departs from the following facts:
2.1
The Newspapers are Algemeen Dagblad, NRC Handelsblad, Trouw, de Volkskrant, Het
Parool and Rotterdams Dagblad respectively.
2.2
Each Newspapers operates a website on the internet that contains amongst other
things a selection of news reports and articles from their respective papers.
Each news report and article has a title. The homepage of each paper contains a
complete list of the news reports and articles available on the website.
2.3
Defendant Eureka, of whom the other defendants are the partners, runs a company
offering internet services.
2.4
Eureka operates an internet website with the address
"www.kranten.com" containing amongst others a page "landelijke
kranten"("national newspapers").
This page contains a daily renewed list of the titles of news reports and
articles on the website of the Newspapers, headed by the names of (amongst
others) the national papers published by the Newspapers. The titles and lists
of titles match the titles and lists of titles on the respective websites of
the Newspapers. The titles and lists of titles reproduced by Eureka are deep
links: if one clicks on a title, one is transferred directly to the report on
the website of the paper concerned that corresponds with the title concerned,
bypassing the homepage of the website of that paper.
2.5
Eureka also provides the visitors of its website with a news service that
consists of sending e-mails on a daily basis containing the latest news in the
form of a list of deep links as stated above.
3. The dispute
3.1
The Newspapers demand after change of claim – in short – by provisionally
enforceable judgement:
1. To order
Eureka subject to a penalty payment with immediate effect to cease and
permanently refrain from infringing the Newspapers’ copyrights and database
rights and acting wrongfully otherwise, in particular by ordering Eureka to
cease and permanently refrain from:
a. reproducing and making public (systematically) titles and lists of titles of
news reports and articles owned by the Newspapers, and/or
b. extracting and re-utilizing (repeatedly and systematically) titles and lists
of titles of those news reports and articles, and/or
c. inserting hyperlinks systematically to other pages than the Newspapers’
homepages of their websites;
2. To order Eureka subject to a penalty payment to inform its e-mail service
customers on its ceasing and to provide the attorney of the Newspapers with a
list of all subscribers to the e-mail service and with evidence of the sent
report within seven days of service of this judgement;
3. To order Eureka to pay the costs of these proceedings.
3.2
The Newspapers support these claims by the following assertions.
The Newspapers are the owners of the copyrights and the database rights in the
(collected) (titles and lists of titles of) news reports, mixed reports and
articles in the papers published by them and on the websites maintained by
them.
Eureka is lacking the Newspapers’ permission to reproduce (the titles and lists
of titles of) those reports and articles.
Thus Eureka infringes the copyrights and database rights of the Newspapers in
(the titles and lists of titles of) those reports and articles. Eureka
furthermore acts wrongfully in that it profits injustifiedly from the
investments of the Newspapers in (amongst others) the selection and drafting of
(titles and lists of titles of) reports and articles and also by inserting
direct hyperlinks (systematically) to reports and articles of the Newspapers,
bypassing the homepages of the Newspapers’ websites by which the Newspapers
amongst others lose advertising income. The Newspapers suffer damages as a
result of Eureka’s acting for which Eureka is liable.
3.3
Eureka has opposed the provisions asked with the following assertions
particularly.
Hyperlinks are the functional core of the world wide web.
Deep links are common on the internet. The so-called search engines also use the
phenomenon deep link intensively. Hyperlinks cannot infringe copyright.
Alternatively, Eureka can invoke the quotation right or the right to reprint
press reports in the press.
Although titles of news reports can be protected by copyright, the reproduction
of those titles on the internet for the benefit of hyperlinks referring to
those reports is the most appropriate and common way to fill the hyperlink to
the report concerned. By placing the reports and articles concerned with these
titles on the internet the Newspapers granted implicit permission to use these
titles to hyperlink.
Article 15 Copyright Act permits the reprinting of complete news reports having
appeared in other media, including their related titles. In article 15a it is
stated that quoting in the form of a press survey is a permitted form of
quoting. Alternatively these provisions are suitable for analogous application
to forms of use at the time not foreseen by the legislator.
Unlike the titles, the lists of titles as a collection do not show "an
original character of their own and the author’s personal stamp" that
would make them copyright protected works. Nor can the lists of titles benefit
from the protection for "unoriginal writings". Alternatively, the
protection for unoriginal writings is not that broad that the Newspapers can
oppose the reprinting of a short list of news reports by another medium.
The lists of titles of news reports are not protected by database rights,
because a dozen titles of a paper on the internet does not show that there has
been a substantial investment in assembling the titles on that paper’s
homepage.
Profiting from other people’s efforts can never be a tort in itself without
additional circumstances causing wrongfulness. Deep linking is customary and
generally acknowledged on the internet. The Newspapers are able to prevent deep
linking technically, but apparently choose not to do so.
Sending hyperlinks to subscribers through the e-mail service does not differ in
any relevant sense from putting them on the website.
Eureka disputes that the existence of its website on balance is harmful to the
Newspapers. It is firmly convinced that on balance kranten.com produces more
visitors to the Newspaper’s websites and therefor generates more income than
would be the case if kranten.com would not offer its services.
4. The Court’s
opinion
4.1
At stake in these summary proceedings is the claim of the Newspapers to
prohibit Eureka to deep link from its website with the address www.kranten.com to
another page than the homepage of the website of the various papers published
by the Newspapers. The Newspapers claim to suffer damage as a consequence of
this deep linking because Kranten.com takes over de facto the function of the
homepage of the papers depriving the Newspapers of the possibility to disclose
the websites of their papers in their own way and to exploit their website. The
homepage of the papers contain advertisements which generate advertising
income. Such income is dependent of the number of visitors clicking on a
webpage with an advertisement.
4.2
The Newspapers publish papers. Every day they select from their papers some
twelve reports and articles which they communicate on their website. This
availability on the internet enables everybody anywhere in the world with an
internet connection possible to receive that information and to use it by
filing that information, printing on paper, copying and/or by sending to
others. It is possible for the provider to limit such use in the way and to the
extent in which the information is released. Eureka has uncontestedly stated
that it is technically possible to prevent deep linking. The Newspapers have
not used this possibility.
4.3
The Newspapers make said information available by giving a complete enumeration
of the titles of the reports and articles, which are reproduced on subsequent
pages. Eureka daily reproduces the complete titles from the homepages of
several regional and national newspapers and presents a current survey of all
titles on its website kranten.com. If somebody clicks the name of a newspaper
he leaves the website of kranten.com and is transferred to the homepage of the
newspaper concerned. If one clicks a title, he leaves the website of
kranten.com and is transferred directly to the article concerned on the website
of the newspaper concerned. From that page it is still possible to enter the
homepage of that newspaper. Therefore, the homepages of the Newspapers’
websites are by no means made inaccessible by deep linking from the website of
kranten.com. For this reason alone it cannot be established that kranten.com
takes over the function of the homepage of the Newspapers, nor that it
prejudices the exploitation of the Newspapers’ websites.
4.4
With regards to the advertising income it is likely that the existence of
kranten.com at the same time has also a promotional effect drawing more
visitors to the websites of the Newspapers. Therefore at present it is not
likely that the Newspapers suffer real damage. As far as the Newspapers lack
income because (most) advertisements have not been put on the most frequented
pages such a consequence follows from their own choice. Damage resulting from
it cannot be attributed to Eureka.
The debates on the discussion page of kranten.com are not less edifying than
the debatestaking place elsewhere on the internet and at the present it is not
likely that the contents of a discussion on the website of kranten.com will
cast a slur on the papers whose websites can be visited from kranten.com.
Eureka has contested with explanation - and it also does not follow from random
checks - that pages of the papers’ websites are not fully loaded if one is
transferred from kranten.com. Therefore already in the absence of damage (that
cannot be imputed to Eureka) the fact that Eureka profits from the investments
of the papers in their websites cannot be considered to be wrong.
4.5
Copyright restricts the right to reproduce data. However, adding a (deep) link
from the website kranten.com to the (reports and articles on the) websites of
the papers published by the Newspapers cannot be regarded as a reproduction of
these works. This also applies to a list of (deep) links to (the reports and
articles on) these websites sent by kranten.com to its subscribers. The
complete adoption of the list of titles from the homepage of the papers and its
incorporation (mentioning the origin) on Eureka’s own website is however a
reproduction of these titles and of that list as such.
4.6
Even if it can be assumed that (some of) these separate titles and the mere
enumeration thereof as a whole (hereafter: lists of titles) has to be regarded
as (a collection of) copyright protected works with an original character of
their own carrying the author’s personal stampthese titles and lists of titles
can be reproduced completely along with indication of the source by a press
medium, pursuant to section 15 Copyright Act 1912 (hereafter: Copyright Act).
The website kranten.com can be regarded as a press medium for the purposes of
section 15 Copyright Act. Kranten.com after all presents only a current survey
of the titles on the websites of various media. It can be regarded as a news
medium that periodically (every day) presents a current contents of those
media, in which the names of those media are mentioned explicitly. The literal
reproduction of the titles and lists of titles with regard to this "table
of contents" for the benefit of linking should be considered to be careful
and justified in this context and therefore permitted in this context according
to generally acceptable standards. All these things moreover amount to press
surveys, benefiting from the freedom of quotation of section 15a Copyright Act.
There are no substantial differences between the reproduction as a link of the
titles on the website of kranten.com and sending those links to subscribers. In
this context therefore there is no conflict with the Copyright Act 1912.
4.7
The list of titles on the website of every newspaper is a collection of
separately accessible data. Insofar a list of titles can be regarded as a
database. The Database Act only grants protection to a collection if its
contents is systematically or methodically arranged. A list of titles is
primarily a (chronological) survey of the titles of the reports and articles that
one will come across (successively) on the pages of the website. Eureka has not
argued that this arrangement cannot be regarded as a database in this respect.
4.8
Eligibility for protection as a database presupposes that the contents of the
collection shows a substantial investment in qualitative or quantitative
respect. Such investment may consist in the deployment of financial resources
and/or time, effort and energy in order to obtain, verify or arrange the
contents of a database. It cannot be said that the Newspapers have invested
substantially in the contents of the lists of titles. Their investment is
directed to gathering the reports and articles to fill the newspapers. The
titles are invented as headlines. The selection of the reports and articles
which will be put on the internet is a matter of minor importance in this
respect. Therefore there is no qualitative investment in the drafting of a list
of titles. The assertion that seven employees are said to be concerned in the
website of a newspaper will be numerically negligible compared to the total
number of people that work for a newspaper, and therefore also a substantial
investment in quantitative respect is lacking. Therefore there is no conflict
with the Database Act.
4.9
Even if the websites of every newspaper as a whole, therefore as a combination
of the homepage with the subsequent pages with reports and articles, should be
regarded as a database within the meaning of the Database Act, this would not
render a different judgement. After all in this respect the extraction and
re-utilization of the lists of titles alone cannot be regarded as the
extraction or re-utilization of a substantial part, evaluated qualitatively
and/or quantitatively, of the contents of the database. The fact that Eureka
does this repeatedly and systematically also does not infringe the Newspapers’
rights as producers of the database because, as already considered above under
4.4, at the present it is not likely to judge this in conflict with the normal
exploitation of the databases or to cause unjustified damage to the Newspapers’
interests.
4.10
It should be assumed that the introduction of the Database Act has caused the
lapse of the protection of unoriginal writings in respect of collections. Thus
the Newspapers also cannot derive arguments from that concept in order to
prohibit the methods of kranten.com. In view of the connection between the
Database Act and the adjustment of the Copyright Act 1912at the same time it is
after all unimaginable that the legislator has intended to keep collections,
which are neither eligible for copyright protection in the sense of the Bern
Convention nor for database protection, under the protective scope of the
Copyright Act 1912, as could be assumed in the past. Moreover the exemptions of
articles 15 and 15a would apply to the protection of unoriginal writings as
well.
4.11
Summarizing it can be said that the way in which a survey of the reports and
articles on the websites of various media is presented on the website of
kranten.com is a careful way and is not contradictory to the accepted
standards. In accordance with the Copyright Act one is allowed to present a
survey of the reports and articles in various media in this manner. Also a
conflict with the Database Act is absent, because the Newspapers do not invest
substantially in the drafting of the lists of titles of their reports and
articles. Nor has it become apparent that deep linking from kranten.com to the
websites of the papers is harmful to the Newspapers. The provisions asked for
shall therefore be refused.
4.12
The Newspapers, as the party found in error, will be ordered to pay the costs
of these proceedings.
5. The
decision
The President,
denies the
provisions asked;
orders the
Newspapers to pay the costs of these proceedings estimated up to this judgment
on the part of Eureka on NLG 400 in court taxes and NLG 2,500 in attorneys
fees.
This judgement
was delivered by J. Mendlik, President, in the presence of M.A.M. Baars, Clerk
of the Court.
Pronounced in open court.
(la traduzione in inglese č ufficiosa)