‘Perma.cc’: is the fight against "link rot" copyright compliant?

From news outlets to academic writing, publishing online is now part of the mainstream amongst publishers. It is relatively inexpensive, instantaneous and reaches readers worldwide. But the dynamism of internet publications does have one inconvenient-- "link rot".

‘Link rot’ refers to the decoupling of the hyperlink (or URL) with the webpage with which it was originally associated, rendering the link useless. While you may not be familiar with the phrase link rot itself, undoubtedly you will have experienced some of its most irritating symptoms: ‘page error 404’, ‘The URL you requested was not found’ or ‘Oops! Something wrong happened’. Research shows that, on average, a staggering 50% of links will be decoupled from their original content, i.e. turned to rot, two years following publication (see here and here).

With weblinks spreading to footnotes, research paper citations and court reports referencing evidence or information, link rot has become a threat to academic rigour (in addition to being a source of acute frustration). In short, link rot has become an evil in need of a cure.

Technically, the remedy for link rot is rather simple: permanent links (also known as ‘permalinks’). The publishers of the content can attribute a permanent (inseverable) link to the webpage. According to TechnoPedia,

“permanent links work by providing an alternate but permanent Web address for content, which is initially viewable only on the home page or top-level domain … but is relocated to a separate page once it’s archived.”

But it is for the publisher of the content to take this precaution, and not all dynamic website hosts or editors care, or have the wherewithal, to preserve their publications from link rot.

Harvard’s Library Innovation Lab addressed this problem by creating a tool that enables the content user, in lieu of the publisher, to take the necessary precautions to preserve the webpages they reference. This tool goes by the name of ‘Perma.cc’ and it is a free service presented as the antidote for link rot in research and legal scholarship. Interestingly, this tool was first designed to address the issue of link rot in law journals, which is claimed to affect 20% of online material after two years, reaching 50% after five years.

Link rot spreading over time. Illustration by Perma.cc (website: https://perma.cc/ )

Perma.cc enables a user of online content to directly create a permanent link (as opposed to relying on the website editor) through its platform. This permalink is associated with an identical copy of the webpage that the user would like to preserve. The copy of the webpage is then moved to another page, an archive page, hosted by Perma.cc. The ‘archive’ copy of the page is given a new, permanent link, which can then be cited in a paper, brief or court decision, without fear of rot.

To date, ‘perma.cc’ has been used to preserve over 750,614 links by at least 24,606 users and endorsed by 1,172 archiving institutions (which includes a good number of universities across the world) (see live figures on use here). Over time, Perma.cc should be the holder of a significant archive, or database, of online pages cited in papers and court proceedings.

The benefit of user-generated permalinks, which Perma.cc facilitates, is undeniable. But is it compliant with copyright law?

Webpages invariably feature copyright-protected content. Platforms which make the most of what the online medium has to offer will not only have text-based content but also embed images, videos and sound. So what happens when all of this content is captured by Perma.cc to be rehosted on an archive page and given a new weblink? Is this of infringement under copyright? Is it a form of reproduction or communication to the public as we understand each of these provisions under the copyright law? Would perma.cc benefit from an exception to copyright protection?

No more link rot for lawyers?

At present, it seems that Perma.cc has been endorsed and used by mainly US-based institutions. US copyright law include a fair use doctrine that is widely considered to provide generous protection for users of protected works in the furtherance of the public interest (as Perma.cc does with respect to research and information by maintaining accurate records of online sources).

By contrast, the scope of the fair dealing doctrine in the UK, or in most other European jurisdictions, is more circumscribed. It is therefore questionable, for example, whether the type of use Perma.cc makes of the webpages it archives will qualify for fair dealing or one of the permitted acts listed by the UK Copyright, Designs and Patents Act 1988. This is because exceptions to protection, such as private study, research, review or quotation, were drafted with individual uses of copyright works in mind, rather than the large scale, systemic, uses of protected works, such as facilitated by Perma.cc.

Given what Perma.cc offers in providing a valuable tool against link rot, it behoves legislators or courts to redefine copyright infringement or exceptions to make sure that this type of digital preservation does not breach copyright. Failing to do so leaves initiatives like Perma.cc, vulnerable to a claim of copyright infringement.