RSS (or Rich Site Summary) is a format for delivering frequently updated web content such as blog posts, news headlines, audio and video.
RSS has become a popular feature of many websites, particularly for news media outlets. Yet its popularity has also grown for various other commercial organisations seeking to appear in touch with the latest announcements relevant to their industry. Using an RSS feed allows website hosts to link a running commentary from various sources through their website, usually via a frame on their homepage. This commentary represents a summarised version of the information available on the original source, and can give the website a dynamic appearance.
Perhaps unsurprisingly, significant debate has been had regarding the potential copyright consequences of integrating live RSS feeds into commercial websites. Much of the commentary seems to have died down now, particularly since its peak in around 2010. Yet confusion still abounds, and many organisations that use well-intentioned RSS feeds may be inadvertently breaching copyright.
One view is that by establishing an RSS feed, the copyright owner is authorising others to use the information via an implied licence. This is not a particularly sound legal approach under Australian copyright law. The contrary, and much stronger position, is that the information available through an RSS feed is much like any other form of written text, or literary work in copyright language, and should be protected just the same.
As such, copyright law does provide some guidelines regarding the use of RSS feeds. The standard exceptions to copyright are fair dealing for research or study, critiquing, news delivery and satire. Beyond these very narrow exceptions, the key to the fair use of another person’s written content is the principle of substantial reproduction.
Substantial reproduction is the term used to convey the threshold at which fair reproduction of a source oversteps the boundary into copyright infringement. Crucially for RSS considerations, the quantity reproduced is not as relevant as the value of the particular part reproduced. This means that a person or organisation can use excerpts from another author, provided that this reproduction is not an important, essential or distinctive part of the original text. Anything more than this results in the waters of copyright becoming rather murky. Naturally, the term “substantial reproduction” is not defined in the Copyright Act, but left up to the courts to decide.
Herein lies the challenge with the use of RSS feeds. What is the important, essential or distinctive part of such a short quip? An old rule of thumb in copyright law is that if it is the important, essential or distinctive part, then that is the part the owner will want to protect. The outcome of this is that, generally speaking, if the information is useful then it is probably copyright protected.
Of course this may not always be the case. What is key to the author may not be what is key to the reproducer. Where the various interests in the information are much broader, it seems much safer to post third party text onto a commercial website via an RSS feed.
Further, copyright may not be the only concern, and organisations should also be wary of their RSS feeds infringing defamation laws. When a live content stream is fed through to third parties, there is potential for defamatory material to be published. This holds the publisher liable, just as much as if they were the writer.
Similarly, a publisher of information via an RSS feed will be liable for ensuring that the information will not amount to Australian consumer laws. For example, that the information published does not have the capability of misleading and deceiving consumers.
Ultimately, RSS feeds can be a great to liven up a website, provide some practical, useful information and perhaps, form part of an SEO (search engine optimisation) strategy. However, they are not without legal risks, and organisations using RSS feeds should certainly proceed with caution.