Your own or your organisation’s sites: Content distribution, Part 3 – Resyndicating others’ content

It is conceivable that you or your organisation may wish to resyndicate, on your or its own site, content from the feeds of other websites. Alternatively, you may wish to bookmark a handpicked and tagged selection of items from various websites in del.icio.us, take the resulting del.icio.us feed and use that to populate your site with headline links to items on other sites.

Resyndicating content from others’ feeds

It should follow from the discussion in the previous post that taking and resyndicating others’ feeds without their consent is not a good idea. If such consent is not obvious from terms on their site or from the feeds themselves and there is any risk of adverse action upon re-use, the safest bet is to request permission and, if granted, obtain written confirmation. Failing to do so could prompt the content owners to unleash their legal hounds.

Equally, even where a general consent to resyndicating feeds is apparent from an organisation’s site, you may need to take care that you comply with any terms accompanying that consent. By way of example, the New Zealand Herald expressly “encourage[s] the use of NZ Herald RSS feeds as part of a website or weblog”. At the same time, their RSS licence terms require, among other things, that NZ Herald’s headlines are displayed in the exact form received, are not modified without their consent and that the resyndicating website stipulate that the headlines are supplied by nzherald.co.nz.

Populating your site with handpicked links

By contrast, in my view, populating your site with headline links from a handmade del.icio.us feed should pose little risk, provided you:

  • make it clear where the headlines are coming from, so as to denote their source(s) and avoid the perception that the content is on your own site;
  • do not create an impression that you have a professional or other relationship with the source sites/organisations if you do not (as this could raise issues under the Fair Trading Act 1986 and/or the tort of passing off);
  • do not associate their content with content that they might consider disreputable or offensive; and
  • do not infringe their trademarks by, for example, using their logos without their consent.

There are, however, residual risks. It is possible, for example, that organisations’ sites to which you wish to link contain prohibitions on deep linking in their terms of use (which, in some cases, their lawyers may simply have dropped in as standard practice). Alternatively, organisations may argue that there is copyright in a headline and that your copying it without consent constitutes a breach of copyright.

As to the first issue, those terms of use may be unenforceable against you or your organisation if you have never consented to them (actually or by conduct), although note that, if you continue to deep-link to the site after being informed of the site’s terms of use, you may place yourself or your organisation at greater risk of being bound by, and therefore in breach of, those terms. (Arguments can be made against that proposition, but I won’t explore them here.) In addition, of course, you might not want to be deep-linking to articles on other sites in the face of assertions by the site owners that you’re breaching their terms of use. After all, if that’s their position, why should you be boosting their search engine rankings through the creation of more incoming links to their sites?

As to the second issue, there is a measure of debate as to whether there is copyright in a mere headline. Internationally, there is no uniform answer to this question. Some courts have held there is not, others have held there is, while others still (both courts and academics) have held sometimes there is and sometimes there is not, depending on the creativity of the headline. It’s probably safe to say, as a minimum, that the more mundane the headline, the lower the prospect of it attracting copyright. For my part, I agree with the practical approach advanced in James & Wells Intellectual Property Law in New Zealand (Thomson Brookers, Wellington, 2007, p. 524). They note that “a balance needs to be struck between protecting the rights of those parties whose sites may be the subject of linking, and the general interest of the internet community to encourage freedom of use and dissemination of information”, adding, by reference to US, New Zealand and English case law, that hyperlinking will not normally amount to copyright infringement.

Ultimately, one needs to inject any legal analysis of this topic with a healthy measure of pragmatism. The prospect of site owners objecting to deep links may be low if not negligible where all you are doing is sharing handpicked links to interesting articles and commentary elsewhere.

Leave a Reply

If you'd like to get to know us or discuss something over coffee, drop us a line.