In his letter, James Calloway, General Manager of Nando.net said "we regret to inform you that our headlines are copyrighted and we no longer permit other sites to use the headlines for free".

Not only does this threaten to establish a precedent in the online news-publishing industry but it also raises the thorny issue of whether news headlines and hypertext links are indeed "creative works" protected by copyright. A number of previous cases which offered to set a precedent on this matter have been settled out of court so the matter really remains unresolved.

Perhaps two of the most widely publicized cases were the Shetland News versus Shetland Times and the actions brought against Total News by several big-name publishers including USA Today and The LA Times.

Although widely reported as copyright cases, both of these actions were in fact largely based on trademark law and the issue of "passing off".

The consensus of legal opinion is that neither headlines, nor hypertext links are covered by copyright and this probably explains why previous prosecutions for linking have been made on different grounds.

Aardvark has contacted a number of news-content aggregation and link sites to canvas their opinions and without exception they've said that they would not pay for the right to use headlines or links to the Nando Times or any other public Web site.

Adam Green of Andover Net, operator of several news aggregation sites, said "I doubt the editor has checked with his legal staff. Before launching Andover News we had a good copyright lawyer research the issue. He found clear precedents that copying headlines is not a violation of copyright. Copying links is definitely not a violation of copyright. The most important issue is that we are providing free advertising for the sites that we link to."

Sean Peck of NewsIndex said "they [Nando Times] aren't really offering anything that cannot be found elsewhere. I could see some vertical sites trying this tactic but not a general news site".

Jeff Cannon from the LA Times says that as a news publisher, The LA Times is more than happy for other sites to carry its headlines, so long as those headlines are used with suitable acknowledgment to the LA Times and in conjunction with a link back to the story. They have no intention of charging other sites for the use of their headlines or links and considers the many link-sites and news aggregators to be beneficial to the industry. Previous actions taken by the LA Times against linkers have been based on the inappropriate use of framing, not the copyright associated with the headlines or links themselves.

One must ask why any news site would try to stop others from linking to them. After all, each of those headlines and links is, as Green would say "free advertising".

The answer is that most online news publishers are still bleeding red ink and have significant levels of unsold advertising inventory. In such cases, the extra traffic generated by the link sites becomes nothing more than an extra cost and a burden on their servers.

Perhaps Nando Times are just testing the waters but it has come to Aardvark's attention that at least one other major online publisher may have similar plans to charge for headlines and linking rights.

It seems unlikely that the whole issue of linking and copyright will be clarified until some form of legal precedent has been set in the courts.

Related Stories from the Aardvark archives:

• Lawyers called in over "framing"
• Negligence weakens publisher's case
• Publishers scurry for legal opinions

• Aardvark Weekly: To link or not to link?