article
Linking online content - enforcement of rights and hitting the right target
19 February 2010
Estimates vary, but it is commonly accepted that there are over 150
million websites on the web (and reportedly over 25 billion web
pages). Without the ability to navigate logically and coherently
between those websites and pages, the effective management of
online content would have become impossible, and the web would have
become uncontrollable, a long time ago.
Since the web is driven by hypertext mark-up language (html),
the natural way to navigate around websites is through the use of
hypertext links. Such links have become the day to day marketing,
social networking, research and commercial tools of the online
trade - the online signpost.
However, as soon as content providers direct their readers to
third party websites the intellectual property rights of competing
parties and obligations flowing from those rights come into play.
Does a content provider automatically grant a non-exclusive licence
to the world at large to link his content to other sites, simply
because he has put his content on the web? If not, how can he
regulate who accesses and redirects his content?
In recent times the debate has circled in particular around the
liability of internet service providers and most recently search
engines (which are, after all the custodians of a plethora of
hyperlinks). Of those 150 million websites, it’s estimated that
Google alone hosts around 11 million. To what extent should those
entities be responsible for the links they provide, and the content
of the third party websites to which they point?
What’s in a link?
A hyperlink is nothing more than an electronic address or
Uniform Resource Locator (URL) which points to a location on the
web. It can be a link to a page within the same site as where the
link appears or to a different site. The link can be displayed in
any number of ways, for example as the URL of the location it is
pointing to or as a key word or image associated with that
location.
Outlinking
The most often used link is the outlink. Put crudely, it works
by storing the electronic address of the site to which it points.
When activated by the user clicking on it, it sends the user to the
destination page either within the same window which the user has
opened or by opening the destination page in a new window.
The outlink comprises either a simple link (or surface link)
which points to the homepage of a website, or a deep link, which
points to a page (other than the homepage) within a new website.
The user can determine that he has been redirected to a new page
because the URL will have changed, but problems arise in particular
where deep-linking is used. For example, has the user missed some
important information on the homepage (some advertising, guidance
or website terms and conditions)?
Inlinking and Framing
By contrast an “inlink” pulls content into the host site from a
different page. This means that the user’s view of the current page
is not interrupted, but rather additional data from a different
page supplements that view. The user may be unaware that the
material he is now viewing is from a third party website. The
likelihood that the user will make certain assumptions in relation
to the content is thereby increased. For example, what is the
origin of the products he is now viewing?
Is linking an infringing act?
Copyright and database right issues
Firstly, it is unlikely that copyright subsists in a URL itself.
Following Ticketmaster v Tickets.com in the District Court of
Central California (6 March 2003) the position under US law is that
a URL does not have the requisite quality of originality to attract
copyright. It is difficult to see how the position would be
different under English law. So providing a link which comprises
the URL of a third party website is very unlikely to infringe
copyright. Of course, if the link is a graphic or image which
points to a third party page, there is a risk that reproduction of
that graphic or image is an infringement of copyright, and so care
must be taken when considering how to represent the link.
Providing a simple link from one site to another was until a few
years ago considered to be unlikely to infringe copyright of that
destination site. After all, creating a link does not require an
act of copying of the destination site onto the server of the link
provider. It is a signpost, or a reference, not a provision of
content. The position of the end user is different of course,
because he will be making a copy of the content of the destination
site on his server.
However, with the implementation of the EU Copyright Directive
(2001/29/EC) in the UK, section 20(2)(b) of the Copyright Designs
and Patents Act 1988 (“CPDA”) was introduced. This provides an
exclusive right of an owner of a copyright work to “communicate the
work to the public” by electronic means “in such a way that members
of the public may access it from a place and a time individually
chosen by them”.
This means that a third party requires the authorisation of the
copyright owner to communicate the work to the public. Without such
authorisation, that third party infringes copyright. Arguably, this
authorisation is given by the owner when he puts the content onto
his own website (particularly if no restrictions as to reproduction
accompany that content). After all, in a large number of cases the
owner of a website will welcome more traffic on his site and so
actively encourages others’ communication of the work to the public
(think viral marketing).
However, a content provider will want to avail himself of the
right to withhold his authorisation in certain circumstances,
particularly where he wants to preserve the exclusivity of his
content and strictly control any associations with third party
websites. This is particularly the case where the content provider
wants to protect his content from being deep linked to a third
party website. It is not suggested that a deep link is any more
likely to infringe copyright than a simple link. Again in the
Ticketmaster case, it was held that deep linking did not amount to
copyright infringement, but the position remains untested in the
English courts following the introduction of section 20(2)(b) CPDA.
Therefore a content provider wishing to restrict circulation of his
website by others would be well advised to include the appropriate
restrictions in his website terms and conditions or perhaps
consider password protection of the website.
We should not forget that the content owner may have a right of
action against an end-user of the content (i.e. the reader of the
linked website). But even though the end user will have made a copy
of the material on his own server by accessing the website, he may
have a defence of fair use, unless he uses that material for
commercial purposes.
By contrast, the sui generis right relating to databases has
been effectively used to challenge those who deploy deep links to
others’ websites. Courts have held that the content of a website
can amount to a database, being a “collection of independent works,
data or other materials arranged in a systematic or methodical way
and individually accessible by electronic or other means” (Article
1(2) of the Database Directive (96/9/EC). Providing a deep link to
that website may constitute an extraction or reutilisation of a
substantial part (or repeated and systematic extraction or
reutilisation of insubstantial parts) of that database. In the case
of Apis-Hristovich v Lakorda AD 5 March 2009, it was considered by
the ECJ that the reproduction of hyperlinks within the database
could itself be evidence of infringement.
Trade marks and passing off
The representation of a hyperlink may itself comprise an image,
brand or logo, which carries with it the risk of trade mark
infringement and passing off. Moreover, a content provider whose
website is linked to a third party website may have a cause of
action in trade mark infringement and passing off particularly if
the linking carries with it a risk of confusion as to origin. This
is more likely to arise in the case of deep linking since the user
will not necessarily know the origin of the page to which he has
been sent via the link, and also in the case of framing where he
views the new content within the same window as the original
content.
Reputation management
Although the act of linking itself is unlikely to carry with it
a risk of an act of defamation or malicious falsehood (unless the
link comprises a defamatory statement), the person providing a link
must keep a keen eye on the content of the destination site and
particularly the page to which he is directing the reader. If that
destination page contains defamatory material then the act of
linking provides an additional access point to that material and
may be considered to be a republication of that material.
The risk is particularly high where defamatory material which
has been created in one jurisdiction is accessed in a second
jurisdiction. The provider of the link may find himself on the
receiving end of a defamation action either in a foreign
jurisdiction or in his home courts in respect of a foreign
publication. So in Gutnik v Dow Jones, M3/2002 (May 28, 2002), the
claimant sued in Australia (where most of his trade took place)
even though the defamatory statement was published on the web in
the United States.
Who’s liable?
Liability of search engines
There are a number of reasons why search engines have been
targeted as defendants in copyright infringement actions in recent
times. Publications and archives which are traditionally printed
are looking to realise the value of their online archives and have
in some cases moved to start charging for the provision of that
online content. That market is however perceived to be threatened
by search engines providing links to such content without charge,
despite generating substantial advertising revenue. As a result the
battle has raged between the press and the search engines, as to
whether search engines can be liable as a result of the provision
of such links.
Equally, the downloading of illegal MP3 files is facilitated
greatly by increased accessibility. So, in a case originally
brought in China by The International Federation of the
Phonographic Industry on behalf of major record labels, search
engine Yahoo has been held liable for providing deep links to
illegal MP3 files on third party websites.
In the midst of this debate in the UK, Conservative Peer Lord
Lucas had proposed an amendment to the Digital Economy Bill. This
amendment, if adopted would appear to settle the matter, at least
as far as the UK is concerned. The specific clause proposed to be
inserted at section 116G of the CPDA read:
“Every provider of a publicly accessible website shall be
presumed to give a standing and non-exclusive license to providers
of search engine services to make a copy of some or all of the
content of that website, for the purposes only of providing said
search engine services…
A provider of search engine services who acts in accordance with
this section shall not be liable for any breach of copyright….”
The presumption would be rebuttable by explicit evidence (only
in the form of statements in a machine readable file – for example
a text file blocking search spiders) that a licence was not being
provided.
However, the amendment was not moved by Lord Lucas in committee
stage. He explained that he had tabled them as probing amendments
in order to determine the Government’s position on the subject. The
Government has indicated that it would want to consult before
bringing in such changes.
Quite how the Government will next move on this issue remains to
be seen. Certainly those currently lobbying within the music
industry for protection against illegal downloads will not welcome
any move towards granting search engines what is perceived to be
immunity from copyright infringement. Such immunity would pervade a
large number of sectors looking to hold search engines responsible
for the sites to which they direct their customers (not least the
press).
Liability of internet service
providers
Godfrey v Demon Internet Ltd [1999] 4 All ER 342 saw the advent
of liability of internet service providers (ISPs) for the content
they host. However, the implementation of the E-Commerce Directive
(2000/31) by the Electronic Commerce (E.C. Directive) Regulations
2002 affords statutory protection to internet service providers
which host or cache content.
In the case of ISPs caching information (i.e. storing
information to effect an efficient retrieval of it) the ISP
must:
a) store the information solely for the purpose of making more
efficient onward transmission of the information to other
recipients of the service;
b) not modify the information;
c) comply with conditions on access to that information and any
rules regarding the updating of that information;
d) not interfere with the lawful use of technology to obtain
data on the use of that information; and
e) act expeditiously to remove or disable access to that
information upon actual knowledge that the information at the
initial source of the transmission has been removed/disabled.
(Regulation 18)
Likewise, the Electronic Commerce (E.C. Directive) Regulations
2002 deals directly with the liability of an ISP which hosts
information, particularly in relation to liability in respect of
unlawful content. The ISP is protected from liability if:
a) he does not have actual knowledge of the unlawful
content;
b) if put on notice of that fact, acts expeditiously to remove
or disable access to that content; and
c) provided the recipient of the service was not acting under
the authority or control of the ISP.
This does, in fact, leave substantial scope for bringing ISPs
into actions where defamatory content is uncovered. For this
reason, many ISPs have sophisticated take-down policies and
procedures.
Conclusions
When a content provider makes his content accessible to the
online world via the web, he wants it to be visible. The CDPA
provides him with the exclusive right to communicate the content to
the public, but the strength of that right is doubtful, and
arguably does not reflect the real world. Links to his content are
to be expected, and for the most part encouraged. If the link
really does misrepresent his content in some way (by associating it
with content he considers to be undesirable) the content provider
is likely to be able to take action. Meanwhile those in the serious
and lucrative business of providing links around the web will
continue to look over their shoulders in the UK, at least until the
Government reports back on the Digital Economy Bill.
This article was first published in Copyright
World
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