Web Design

Unless you spend more time in outerspace than Cyberspace, you will have heard about the Napster web site and the court dispute with the big record companies over alleged copyright infringement in the use of their MP3 (music) file sharing software. However, there have been other developments about copyright which relate to a more fundamental aspect of Internet use: deep linking.


Deep what?

When you click on a hyperlink on a web site, that link takes you to another part of the web. Deep linking is when that link takes you to another site, bypassing that other site’s front or home page. The practice is widespread and is a fairly fundamental part of the operation of the Internet. Many people are quite happy with the activity. After all, people want their sites to be visited and so normally are glad when people are directed to their pages from other sites.

However, because one of the income streams from the Internet depends on counting visitors or hits on a site’s home page, bypassing that home page is not always popular. The most prominent – and expensive – adverts tend to be on a site’s front page. So, bypassing the homepage can cause a real loss to the new site visited.

There has been a concern for a number of years that some deep linking could be a breach of copyright as you are, arguably, using someone else’s work onto your website.

One of the most important developments in this area occurred in Scotland in 1996 when The Shetland Times obtained an interdict on the basis of breach of copyright preventing The Shetland News from linking to their stories. In this case, the allegation was that Shetland News was deep linking to the Shetland Times web site stories but bypassing the all important Shetland Times’ home page.

An interdict however is only a temporary order granted without formal evidence being heard. The full arguments, evidence and decision would come when the case went to trial. The Internet community waited in anticipation for the result which could have had global repercussions. Unfortunately no breakthrough precedent was made as the parties settled the matter on the day the trial was due to start.


Going Dutch

Since this near miss there have been very few cases which have tackled the issue of deep linking head on until fairly recently.

In August of last year a Court in Amsterdam ruled on a deep linking case with facts not a million miles removed from the Shetland Times scenario. Here, PCM, a large newspaper group tried to stop Kranten.com from linking its web site directly to the pages of a number of the PCM newspaper sites. They pointed out the advertising problems which deep linking caused.

PCM lost for two principal reasons. Firstly the Court recognised that deep linking was a widespread and generally accepted practice and secondly it accepted that Kranten had a defence of fair use. This principal, which exists in UK law as well as in Dutch, allows the copying of articles for the purpose of reporting current events.


One step beyond

A more satisfactory result for the aggrieved website owner was achieved earlier this year when the online recruitment company, StepStone, obtained a court order from a German Court, preventing deep linking by a rival company from their German site. As the material did not relate to news reporting there was no fair use principle to get round. Although the PCM case recognised the general validity of deep linking, StepStone was able to make use of the European Directive on the Legal Protection of Databases.

This Directive provides for a special right to prevent the extraction or re-utilisation of the contents of a database. Historically, copyright was to protect literary or artistic works and there was therefore an element of quality or merit involved. In the UK however this qualitative requirement has rarely been evident and as such it is thought that many works which attract copyright in the UK would not qualify, for example in Germany, where quality not just effort is important. The compilation of a database is something that would not normally be thought of as an artistic or literary work but the Directive confirms that it can qualify for copyright protection nonetheless.

The Directive was introduced into UK law by the Copyright and Rights in Databases Regulations 1997, which came into effect in 1998. The Regulations amended parts of the Copyright, Designs and Patents Act 1988 so that, for example, a database was now a literary work in terms of section 3. Databases can now qualify for copyright protection regardless of the fact that effort rather than skill or talent has been used in its creation.

So, in a nutshell, Stepstone was entitled to protect the copyright in its database.


Don’t bet on it

Earlier this month the bookmakers, William Hill, were not collecting any winnings having been found to have fallen foul of these regulations. They had obtained information from a third party: details from the British Horseracing Board’s database about horse races to be held in the United Kingdom. William Hill was then displaying this information on its website for its online betting service.

The Court accepted that as this information came from a database, the activities of William Hill in repeatedly using this information without permission was an infringement of the database right which the British Horseracing Board validly held. (William Hill incidentally are no strangers to important copyright cases having been involved in a 1964 case which confirmed that copyright could extend to a fixture list detailing football matches.)


You’ve been framed

Another type of deep linking technique that has been in the news recently is framing, where the link to a page of someone else’s website is framed within a smaller window on the computer screen. The URL or web address of the framed page is not shown. This means the viewer will not necessarily know where the images within the frame are actually from. Sometimes this is intentional. For example, there are many portal or gateway signs that deliberately and legitimately (by agreement) frame the content of other sites to beef up their own. Not surprisingly, however, it is not always done with such consent.

The Haymarket Group recently threatened legal proceedings against Burmah Castrol for their framing of certain pages from Haymarkets’ WhatCar.com and AutoSport.com sites.

The absence of any acknowledgement of the ownership of the page that has been framed is very likely to give rise to allegations of copyright infringement, provided, as with all copyright matters, the copying is of a substantial part of the original work. In other words, unauthorised framing of a substantial part of somebody else’s copyright material is likely to be an infringement.


Conclusion

Whilst it is clearly far from true to say that all deep linking is illegal it is fair to say that in certain circumstances it can infringe on copyright protection. Great care should be taken when linking to a site owned by another. Care also has to be taken to ensure that information placed on a website does not breach the rights now afforded to databases.

As websites become more and more advanced the potential to infringe on the intellectual property rights of others increases. Ensuring that your site is not going to cause any such infringement is something that should be attended to at the outset, or you could end up learning a very expensive – and public - lesson.

 

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