A recent decision by the German Supreme court reversed the previous outcome of the Newsclub v. Mainpost case, which involved the Newsclub online search engines and the German newspaper Mainpost. The court decision had ruled in March 2003 that providing deep linking violated authors’ rights.
It transpires from the recent German Federal Supreme Court’s decision that Germany is definitely paving the way for supporting the legality of deep linking.
In a case involving the publishing house Holtzbrinck and the online search engine Paperboy, the German Federal Court of Justice held that Paperboy did not violate authors’ rights nor competition law by linking internet users to articles on news websites, bypassing home pages of the news services. The court added that the plaintiff could still prevent deep linking via technical measures.
This ruling also contradicts the Danish court decision in the Newsbooster case, where the online search engine was ordered to remove links to 28 Danish online news sources.
The EFJ is concerned that the recent German decision will harm journalists' authors' rights. Although freedom of information still remains the crucial point for journalists, other important elements should be taken into consideration. A search engine that only directs a user to articles from a particular selection of newspapers and thereby generates a commercial profit from material freely accessible online constitutes a breach of journalists' authors' rights. Indeed, this action represents a new use of this material which should entitle the journalist to a corresponding remuneration.