Introduced in 1990, the World Wide Web has experienced enormous growth and popularity. In spite of several other useful features, connectivity to Web pages with the click of a button remains the most prominent feature offered by the Web. This connectivity between Web pages can be achieved by linking and framing.
Typically, a Web page on a website connects to another Web page with a link. This link is also known as a hypertext link or a hyperlink and is a coded text usually represented in bold or an underlined text or an image on a Web page. An example of a simple hyperlink code is given below:
<a href="http://www.rkdewan.com">R. K. Dewan & Co. </a>
If a link takes a Web user on a different page on the same website, it is called an ‘internal link’. In contrast, an ‘external link’ redirects the user to a completely different site.
Another way to connect two different websites is by ‘framing’. Framing is similar to linking where user clicks on a text or an image to get connected to another Web page. But, in framing, the user is not redirected to the destination website; instead, the information from that destination website is imported onto the source Web page to be displayed in a special ‘frame’. Thus, when a user is viewing framed information, his computer is connected to the source website and not the destination website unlike in external linking.
Deep linking is a type of external linking, which links internal pages from a third party website. This might expose owners of the linking website to liability, especially when the linking website fails to provide full information about the linked website. Deep linking can breach the linked party’s rights including rights related to trademarks and copyrights, and thus can be considered illegal.
Ticketron an online ticket selling website had objected to deep linking as they believed it infringed their business interests as the companies deep linked to the internal pages of Ticketron. They had a filed a suit against Microsoft Corporation stating that Microsoft Corporation deep linked to the internal pages of their website and provided services to the companies for free which were otherwise payable on Ticketron’s website. Microsoft Corporation agreed to discontinue the practice of deep linking to the Ticketron website and the case ended with an out of court settlement in 1999.
However, in the case of Ticketmaster Corp, v. Tickets.com Inc., in 2000, a U.S. District Judge ruled out copyright infringement caused by providing hypertext links stating that an actual copy is not created in the process of providing links. Further, the judge ruled that links create legal implications only when they lead to confusion between identities of commercial sites, else, links by themselves are not the problem.
Any kind of linking can have legal implications if the site to which the link is redirected, contains material that is allegedly illegal. Generally, permission is not needed to link another website’s home page on your Web page, but one needs to be aware of the legal issues involved. In case any concerns related to linking a Web page come to light, an agreement for permission of using a link to connect to the website can be signed. Numerous copyright professionals consider that deep-linking does not cause copyright infringement. The analogy used by professionals to prove their point is that of a novel. They believe that an author cannot prevent the readers of his novel from reading the end of the novel first; similarly, the owner of a website should not govern the order in which a user can access the website. Some websites like Amazon.com allow deep-links, but, if certain websites do not have policies related to linking, it is advisable to ask for permission before linking.
The law related to linking is not uniform in all countries. For example, in 2002, for Danish Newspaper Publishers Association v. Newsbooster, the Danish court ruled in favor of the newspaper publishers and prevented Newsbooster website from deep-linking to the newspaper’s website. Whereas, in 2003, in Holtzbrinck v. Paperboy, the German court decided that based on German copyright law, deep linking was not a violation as it is practically impossible to search for information on the Internet without links. In 2006, in the case of Naukri.com v. Bixee.com, the plaintiff Naukri.com, a leading job portal in India earned high revenues by providing its customers with an extensive database containing information and details of numerous jobs available in India. Bixee.com, without the authorization of Naukri.com permitted users to view these jobs directly on its website by completely bypassing the Home Page of Naukri.com’s website and which resulted in significant financial losses to Naukri.com. The Indian Court restrained Bixee.com from deep-linking, copying, downloading and reproducing contents from Naukri.com’s website on the basis of copyright infringement.
Paramount v. Sky
On November 13, 2013, the English High Court granted an order calling upon six main UK internet service providers to block access to two linking websites under section 97A of the Copyright, Designs and Patents Act 1988. Six major film studios were the claimants in this case who requested the blocking order against websites that provided hyperlinks to and downloads of the copies of their films and television shows. The judge, in this case, ruled that even though the sites did not host any content they were liable for infringement as they allowed streaming of the content to users by hosting hyperlinks to the content without permission from the owners of the copyright. He further concluded that the website operators were jointly liable and thus, should be blocked by the defendants.
Deliberately or unconsciously, hyperlinking may result in piracy. To avoid this, the copyright owners routinely request internet service providers to block access to the websites that host infringing copyrighted material. This approach is vastly preferred in Europe, for example, in Switzerland blocking content is likely to be one of the recommendations while reviewing the operation of copyright in a digital world, whereas in Belgium the authorities are continuing their effort of blocking the websites that host infringing material. The Austrian Supreme Court is yet to decide if injunctions can be brought against the internet service providers that allow users to access infringing sites.
As hyperlinking is a less complicated method of providing free access to copyrighted material, it still remains a fact that the approach by authorities is not going to stop the users from providing access to copyrighted material. The authorities must recognize that all the hyperlinks are not same and thus, should analyze the type of content that is being shared in order to decide if a hyperlink amounts to copyright infringement. The users and website owners on the other hand, must rethink that they will be held liable for copyright infringement for providing links to infringing content.