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Internet Linking: Stride of Copyright With Technology

Written by: Ankita Mathur - Final year student national law institute university, Bhopal
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The Web has experienced dramatic growth in recent years, and has transformed the Internet from a primarily passive environment used for email, newsgroups and mailing lists, to an interactive, user enabled universe filled with vast amounts of information. The effect of the Web on the Internet has become so overwhelming that, to many, the Web and the Internet are mistakenly considered to be coextensive. Tim Berners-Lee, the software expert who unwrapped the promise of the Internet by developing the World Wide Web, has long understood and argued that easy, intuitive, and free linking lies at the heart of the Internet but these Internet links may create legal liability.

Recognition, maintenance, protection and encouragement for art and artist is the quintessence of copyright philosophy. Though copyright found statutory expression only about three hundred years ago, its philosophy is age old. Under the most important international copyright convention, the Berne Convention, copyright protection covers all literary and artistic works. This term encompasses diverse forms of creativity, such as writings, including scientific and technical texts and computer programs; databases that are original due to the selection or arrangement of their contents; musical works; audiovisual works; works of fine art, including drawings and paintings; and photographs. There are various ways through which digital copyrighted content can be transmitted across the Internet disregarding the traditional principles of copyright law and one of such form is linking.

Hypertext links between sites web pages provide the ability to connect related ideas and create communities, it often represented as bolded or underlined text, or as an image. By "clicking" a mouse or other pointing device on a link, the contents of another Web page referenced by the hypertext link are then displayed by the Web browser. The extensive use of these interconnections between Web pages is why the medium is termed a "web. There can be intra page links- linking different parts of the same documents; Intra system page connecting different documents on the same sever; or an Inter system link, it connects documents on different severs.

Linking is of basically two types:

Surface linking, where the home page of a site is linked; and Deep linking a link bypasses the home page and goes straight to an internal page within the linked site. While enabling users to surf fluidly from one Web site to another, this practice also raises copyright issues. A simple link from one Web site to the home page of another Web site does not normally raise concern, as the use of such links may be equated to the use of footnotes to refer to other sites. Often, no permission is required to make a link to a site, either because the Web site owner has given an implied license to link by posting his material on the Web, or by characterizing such linking as fair use.

The problem arises only with regard to the practice of deep linking. Since Deep links defeat a Web site’s intended method of navigation. Further deep links may steal traffic from the linked site’s homepage thereby decreasing the revenue that could be generated from advertising that is dependant on the traffic onto the site.

In the Ticketmaster Corp. v. Microsoft Corp [ii], the plaintiff, Ticketmaster Corporation sued Microsoft for practice of linking, without permission, deep within its site rather than to the home page, and claimed, among other things, that Microsoft effectively diverted advertising revenue that otherwise would have gone to the plaintiff. During the pendency of the court proceedings the parties entered into a settlement agreement whereby Microsoft agreed not to link to pages deep within the Ticketmaster site and agreed that the links will point visitors interested in purchasing tickets to the ticketing service’s home page.

In a Scottish case, Shetland Times, Ltd. v. Dr. Jonathan Wills [iii], the plaintiff, the Shetland Times operated a Web site through which it made available many of the items in the printed version of its newspaper. T[1]he defendants also owned and operated a Web site on which they published a news reporting service. Defendants reproduced verbatim a number of headlines appearing in the Shetland Times. These headlines were hyperlinked to the plaintiff’s site. The judge agreed that the plaintiff had presented at least a prima facie case of copyright infringement based upon the United Kingdom’s law governing cable television program providers.
zzxZ Thus what liability is there for the content on a linked site? A hyperlink used by a Web site does not directly cause copying of any substantive content by anyone, but instead merely provides a pointer to another site. By virtue of sections 14 and 51 of the Copyright Act, 1957, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in case of deep linking the linking site is not reproducing any work. The reproduction, if at all any, takes place at the end of the user who visits the linked page via the link. Can the linking site said to be issuing copies of the work or communicating it to the public? Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is the user’s discretion to access the work by clicking the link.

There are many who extol the virtues of free sharing of copyrighted material on the Internet. At the same time, however, creators and intellectual property rights holders need to feel sure that they can protect their property from piracy and control its use, before they will be willing to make it available online. Therefore, our challenge is to ensure that the laws of copyright adapt to the new technological environment in a way that feeds and encourages creative activity rather than in a way that inhibits or overwhelms it. The key is to balance, which has always to be interpreted and reinterpreted considering varying interests from time to time along with the advancement of technology.

End notes
[ii] Ticketmaster Corp. v. Microsoft Corp., No. 97-3055 DDP (C.D. Cal., filed Apr. 28, 1997).
[iii] Shetland Times, Ltd. v. Dr. Jonathan Wills and Another, [1997] FSR 604.

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