I. Terms and Copyright Meaning
When using digital media, whether for business or private purposes, we constantly encounter terms such as linking, framing, sharing, uploading. We are asked to share an editorial contribution, we follow a link, upload texts, images or music.
Only very few people think about what happens technically. However, the technology plays a significant role in determining which legal topics are affected by the use of third party content.
In order to reduce the risk of violating the rights of third parties, some of the most common terms that play a role not only in business but also in private dealings with digital media will be explained in the following, essay, starting with the point of view regarding copyright law and then from the point of view regarding press and media laws / freedom of speech.
The term "link" describes very well what happens when linking: by following the link, a connection is established, leading to contents of other websites, especially to texts, pictures or videos. The decisive factor is that the “foreign” content remains part of the original website and is only “made visible” from the new website through the link. In particular, such content will not be copied into the new website. There is therefore no duplication taking place in the copyright sense.
As a logical consequence, the link can no longer fulfill it’s function if the original provider has deleted or moved the content. Links are therefore unsuitable for a permanent design of your own website.
Technically, there are several types of links:
Internal Links forward the user within the same website. They therefore do not affect copyright. External Links lead from the initial website to the website or website contents of a third party.
Surface Links lead the user to the Landing Page of another website. Deep Links direct the user to a specific section within the linked website. Hot Links (also called: Inline Links) disguise the external origin; the user is often not aware that he is not staying on the original website, but is being directed to a third party website.
Under Copyright Law, all types of links are permitted if the following prerequisites are met:
- The content to which a link is provided has been published on the Internet with the consent of the owner of the rights and in such a way, that it is accessible to every user and is also accessible to the users of the website from which the link to this content is provided. This means that the content may not be made accessible to a "new" audience through the linking. A new audience would be reached, for example, if the content to which the link leads would be only accessible to a certain circle of users due to passwords or similar protective measures, and the users of the page that provided the link do not belong to this (restricted) circle of users.
If the content to which the link is provided has been published on the Internet without or against the will of the copyright holder, the following shall apply:
In the private sphere: The link creator does not himself commit a copyright infringement if he did not know that the publication was not initiated by the right holder and the link creater could not have recognised this (by applying the care required in traffic).
In the business sector: It is - rebuttably - presumed that the person setting the link is aware of the illegality of the first / original publication. If he cannot refute the knowledge an, furthermore, cannot refute that he could not have recognized the illegality, he himself commits a copyright infringement, too.
- A further prerequisite is that the linked content is reproduced by using the same technical process as used by the author of the linked content. This is not the case, for example, if the original content is protected by a session ID. To access the content, a regular user would be forced to first visit another page, e.g. the home page, but instead gains direct access to the (linked) content by a third party that provides a direct link.
When framing is used, content from a third party website is displayed on one’s website. The term “Framing” describes the entire process of uploading the foreign content to a third party webpage. It is not the entire website that is “framed”, but a specific content / excerpt of the original page. The technique used for this is the same as for setting a hot link or an inline link: The content of the third party website, to which the link is provided, is not copied / duplicated, but is directed to the specific content without this becoming apparent to the person who clicks on the link. Since Framing uses Linking Technology, the same copyright conditions apply to Framing as to Linking.
Embedding also uses Inline Linking or Hot Linking as technology: Contents of a foreign web page are integrated into the own web page, here, too, it is not visible for the user that he now watches foreign / third party contents. While the term “Framing” refers to the entire process of importing a foreign content, the term “Embedding” is used solely for the act of displaying the part of the third party website that is integrated into one's own website. As the same Linking Technology is used for Embedding as well as for Frraming, Hot Linking and Inline Linking the same copyright conditions apply here as well.
By uploading texts, videos, images or musical works, they are also reproduced in numbers. Uploading a file to the server will make the file available to numorous users on the Internet, therefore is is considered a reproduction of the original content: Anyone who uploads content to a host provider makes it publicly accessible as soon as it is accessible to everyone via a specific URL. Both copying and making available to the public are acts relevant to copyright law. Both require, in principle, the prior consent of the author repectively the copyright holder, i.e. the person who created the images, texts, music etc. or acquired the rights to use them.
There are a few exceptions to this principle: Reproduction (while not making the content available to the public) is permitted for (purely) private use by the same user. However, this only applies under the conditions that the source work has been legally published on the Internet and that the private user’s storage behaviour ensures he has the sole access to the contents.
Contrary to what the term suggests, a text published on a website is not divided or divided into individual parts when it is shared: instead it is merely “brought to the attention” of third parties – for example, typically on a social media profile. Sharing is not done by duplicating the original contribution, but by simply connecting / linking to it. Depending on which of the aforementioned link techniques is used, the notified contacts either first receive a preview of the content or immediately the full content or a specific passage of the original content on the third party’s website. If such sharing is done with the help of a link, the same legal conditions apply. However, there is a difference between linking and sharing: if the original contribution explicitely calls for the sharing of the its content with other social media users, such linking is always permissible.
Liking corresponds technically to sharing. It differs from sharing only in sofar as it represents a form of consent deliberately chosen by the user or a form of expressing the liking of a certain content. The same conditions of admissibility apply under copyright law as for linking.
However, the user should be aware that the platform operators who make "Like" buttons available almost certainly collect additional user data when such buttons are used.
II. Significance in Terms of Press and Media Laws / Freedom of Speech
As in the case of content not authorised by the author, there is a distinction between linking, regardless of the form, on the one hand, and uploading, on the other.
If contents of third parties are used and these contents contain infringements, the third party may also commit a similar infringement. Violations of the law can be due to the fact that the (third-party) original content used violates statutory provisions, i.e. infringes industrial property rights and / or the copyright of third parties, or the statements contain a violation of competition laws or violate the general right of personality.
In addition to the violation of civil law standards, criminal offences may also be committed, e.g. if the content contains defamation or insult.
A liability of the person who uses the original text by linking, sharing, likening, etc. is only considered if he adopts the infringing statements contained in the source work as his own.
Linking to such content alone does not imply taking ownership or adopting such statements. Even in the mere sharing of such content, the courts do not yet see a “making the statements their own”. However, this is not the case if such content is explicitely pointed out by means of a "Like" button (e.g. Facebook "Like" button). Even if there is no other corresponding statement of the linking party, the jurisdiction sees this as adopting the statement and making it it’s own: If the user does not really like the text, there should be no reason for him to click the "Like" button.
However, a "make it one's own" is also always given, if the context of the website from which the link is made shows that one's own opinion should be supported by means of the linked text. The same applies if the sharing on a social media platform is accompanied by a comment that indicates one's own agreement with the statement contained in the linked text. In individual cases, liability can already be justified by the fact that the person who includes a foreign text, shares it or links to it in any other way, does not sufficiently dissociate himself from the infringing statement contained in the linked text. This applies in particular to false claims of fact and disparaging expressions of opinion.
When uploading an external file, not only the content of the relevant third-party website is duplicated, but also any infringement of rights contained on this original page - be it an infringement of an industrial property right / copyright, competition law or general personal rights. This infringement is repeated / doubled by uploading. In this deliberate doubling, case law sees a similar circumstance as in taking ownership of the content. The person who uploads the file and makes it publicly accessible (exponentiates it) is liable in the same way as the person who adopts an illegal content as his own. According to the jurisdiction, this applies regardless of whether the uploaded content is marked as foreign text by the uploader (i.e. by the "copier") or not. According to case law, the independent act of use under copyright law alone already constitutes liability for the infringement of rights contained in the third-party content.
III. Legal Consequences
If the copyright conditions for the use of third-party content are not met, or if the third party is liable for illegal content contained in the third-party texts used, the linking party can - in any case - be held liable under civil law and there are injunctive relief claims against him. Claims for injunctive relief exist regardless of whether the actor is culpable or not. Claims for injunctive relief are generally asserted by way of a warning letter.
Claims for damages - possibly claims for compensation in the event of violation of the general right of personality - exist in the case of intentional or negligent actions. As a rule, the damages to be paid are calculated on the basis of information on the duration and extent of the use, to be provided initially.
If the contents in the source text also violate penal norms - which is possible in the case of violation of industrial property rights, in particular, however, also in the case of violation of the general right of personality by a defamation or similar statement, a person who takes ownership of such contents and further spreads them, can be prosecuted himself.
If your want to enrich your own website, blog or other social media content with third-party content, it is advisable in any case to check not only the origin, but also the content of the source work. This applies in particular if the enrichment is for business purposes.