Litigation Threatens Web Linking

The freedom to link to Web sites is under threat from the commercial world that has embraced the Internet so thoroughly.

"Litigation over the legality of hyperlinking has surfaced in Scotland, Australia and the United States," writes Bell Gully law clerk Andrea Jane, in her dissertation on the subject which recently won the Intellectual Property Association of New Zealand essay competition.

The problems are twofold -- a loss of potential advertising revenue from the linking to sites without having to pass through a home page, and the "traditional protest" against appropriating the efforts of someone else.

"Advanced link technology, such as embedded links and framing, can be used to bypass or hide advertising," writes Jane.

This, she says, is what TVNZ was opposed to when it warned local designers not to create links to pages within its site without consent in 1994.

"(TVNZ) alleged that embedded links served to 'corrupt ... advertising which may accompany our content' and that this is in contravention of New Zealand copyright laws."

While Jane believes TVNZ is incorrect to imply this would contravene existing laws, she says the existing legislation, written in 1994, is being stretched by the new technology.

The problems stem not only from this new technology, but also from New Zealand's existing legal structure itself.

New Zealand's copyright law "is based in a large part on UK law," says Jane. Other jurisdictions around the world, including the US and Australia, have different interpretations of copyright law and how it is to be applied to the Internet.

The first problem to be answered, says Jane, is whether a Web site sends material or whether the information is retrieved by a viewer. Put another way, can a Web site be regarded as a "transmission service". Jane believes a Web site does satisfy the requirements of a "cable program service" and as such is a broadcaster, but she warns: "My conclusions should be treated with caution befitting any unsettled area of law."

Simply quoting a URL in another Web site is not, of itself, a breach of the legislation because neither single words or addresses can be copyrighted, she said.

"A URL is written without spaces or gaps. This often results in the creation of a super-word -- a string of well-known words. It is submitted that this does not confer originality upon the URL", something that is required before a copyright can be issued," she writes. "A URL incorporating single words and short phrases will not be sufficiently original to be protected by copyright."

Addresses are considered, like telephone numbers, to be "facts" and as such cannot be copyrighted. Jane believes there are "strong grounds" for putting URLs in the same categories with street addresses or phone numbers. The problem that does arise is this argument is based on US litigation and as such doesn't directly apply to New Zealand case law.

Then there is the issue of whether those intermediary computers, that carry the information from the server where the information is stored to the user requesting the information, are breaching the law. Jane doesn't think so, but says the case could be made for it.

On top of that is the question of being on the Web in the first place. If you don't want people to link to your site, says Jane, then don't have one.

"The act of implementing and maintaining a public-access Web site ... implies a licence to enter and explore," she writes. This is an "implied licence" to create links. Jane goes so far as to quote Tim Berners-Lee, the so-called "father of the Web".

"(He) has a policy of denying all requests for permission to link, explaining that none is necessary," Jane adds.

As can be seen, the whole issue is something of a mess and an ongoing one at that. No case has been tried in New Zealand courts that would help define the role of copyright in the Internet, and Jane doesn't think one is likely any time soon.

"New Zealanders aren't a litigious lot," she says. "They're more likely to use the technology to fix the problem rather than the law."

She says there are a number of ways to stop other sites linking to material within your site and that New Zealanders are more likely to take the matter into their own hands than to spend thousands of dollars on a court battle. Because of that, and the fast pace of technology growth in the Internet arena, Jane says we should adopt a wait-and-see approach to legislation, at least for the time being.

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