HYPERLINKING AND INLINE FRAMING – A CASE OF INTELLECTUAL PROPERTY INFRINGEMENT?

11
Mar 2022

hiperlink

It could be said that the worth of a person is to be measured by the level of information they possess – as information has become a vital resource in modern society.

The Internet enables us to stay in the loop with current events and have quick and efficient access to various content, both entertaining and educational. Nowadays, we are only a mouse click away from getting the information.  Hyperlinks inserted on web pages enable website users a direct access to the content of other web pages. Therefore, it can be said that hyperlinks are the webs of the Web. However, the issue of allowed use of hyperlinks and other methods for “linking” content, such as inline framing, has been a question of debate among experts in the field of intellectual property law in the digital environment. These issues have been raised in front of the Court of Justice of the European Union on several occasions. Because of the importance of links for the normal functioning of the Internet, and due to the level of uncertainty that is still present in this area, we decided to pay special attention to this topic.

Nowadays, we certainly pay more attention to where does the content we consume come from, who created the content, and who shared it. However, only a few would check whether the content is protected, whether it is someone’s work of authorship or if there is permission of the author to share the content. This information is in most cases not available to website users, nor is there a way for the average visitor to find out.

Access to unauthorized content will usually not expose you to legal consequences. However, sharing such content, including its framing, can be the basis not only of civil liability but a criminal liability as well.

Unlike ordinary internet users, the criteria for liability are much stricter for legal entities that manage certain websites. A special problem is the illegal sharing of content by popular media platforms.

In this text, we will talk about what is and what is not a copyright infringement by hyperlinking and inline framing of protected content. For these purposes, we will use the example of the Dutch “Playboy” photo model.

Firstly, What Is a Hyperlink?

hiperlink

We all use them, we see them on almost every website, but do we know what hyperlinks are?

A hyperlink is an instruction to a browser that enables a direct link with another website or even some other element on that website (such as photo, video, etc.). A web document that contains a hyperlink is called an “anchor”, and the document to which it refers is called a “target”.

There are several ways of “linking” –  i.e., connecting content from different web pages. “Simple link[1], or regular link, consists only of the URL of the document being referenced. Regular link is usually marked in a different color compared to the rest of the text (e.g., in blue), thus making it obvious to a visitor that the link refers to another web location, as well as to which location it refers. Clicking on the link opens a new browser tab or within the tab where the link is inserted.

In addition to the regular link, a “deep link”[2] is also frequently used. Clicking on the deep link enables a person to access another web page or an element from the web page (that is usually a part of the text, photo, or video), and at the same time bypass the home page of the website. With deep links, users also know that they are accessing other Internet locations since the link is visible and, as a rule,  contains the URL with the name of the other website.

As opposed to the previous two examples, “inline” linking or “hotlinking”[3] is a way of linking online content without enabling the users to know the location of the content they are accessing. The user sees the content (for example a photo) as an integral part of the website.

Each of these techniques is crucial for the functioning of the Internet. Firstly, using hyperlinks in texts enables quick and direct access to content that users are interested in, thus saving time invested in browsing some topics and significantly speeding up the flow of information. On the other hand, the content of a web page becomes enriched, more useful, and interesting.

What Is the Issue?

Texts, photos, videos, and audio recordings we access on the Internet have their author (sometimes even a producer, performer, etc., who also have content rights). The author has the exclusive right to publish their work as well as the exclusive right to communicate it to the public, except in the case when the author transfers the right to public communication to another person – a holder of the copyright. There is a difference between terms publishing and communication to the public – work of authorship can be published only once – the first time when it is announced to the public. Communicating work to the public is slightly different.

When Is Hyperlinking Allowed?

hyperlink

To answer this question, we should first explain what is considered as communication of the work to the public, and more importantly communication to the public on the Internet.

The European Court of Justice is of the opinion that communication of a work to the public shall be considered from two points of view – the mere activity of communication, and in the context of a technical means used to perform the activity, and from the context of the public[4].

In the well-known Svensson case[5], the Court of Justice of the European Union adopted a view that communication of a work to the public on the Internet regarding the work that is initially communicated on the Internet (and at the same time using the same technical means) shall be intended to a “new public”, that is the group of people that a holder of the copyright intended during the initial communication.

Similarly, if the action was performed using a different technical means compared to the initial technical means that the author used, the action will be considered as communication to the public. Thus, if the author communicates a work to the public on the Internet and the other person publishes the hyperlink referring to that work on his/her web page that will not be considered as a new technical means. The work is initially communicated using a computer and the Internet, and the person sharing a hyperlink is doing the same.

On the other hand, if the author publishes the novel without communicating it to the public and the other person scans and publishes it on their website, it will be deemed as a new technical means, which implies communication to the public.

Therefore, without a new public or without the use of a new technical means, there is no act of public communication of the work.

Regarding the criteria of what is the public, the question arises who did the author have in mind during the initial communication. If the author communicated the work on the Internet, for example on YouTube, or on his social media account which is open to the public without limited access, it will be deemed that the author communicated the work to all Internet users. It does not matter whether every user will want to get acquainted with the work or whether they will have any information that the work is available to them. What is appreciated is the ability for the user to access a copy of the work without restriction.

On the other side, if the author communicated the work on the website, which for example, applies certain protection measures, so that only people who paid a monthly fee can access it, it will be considered that the work is intended only for those people. This is often the case with well-known world media platforms that require a monthly subscription.

In conclusion, if the hyperlink points to the work which is already available to all Internet users without any limitations, it will be considered that there is no copyright infringement, even if the author has not previously allowed this work.

What if the Author Never Published the Work?

This further complicates the situation.

The criteria we have previously mentioned are applied under the assumption that the author personally communicated the work on the Internet. However, it is common that someone else uses the copyright-protected content without the permission of the author by posting it on various sites on the Internet without restricting access.

This is exactly what happened when the Dutch publisher “GS Media” posted a hyperlink on its website “GeenStijl” which led to the “Filefactory” website. On the “Filefactory” website, users were able to download 11 files with unpublished photos of a “Playboy” photo model and reality show contestant[6].

As expected, the “Playboy” magazine publisher, photographer, and photo model filed a lawsuit against “GS Media”. What followed was a procedure whose outcome was eagerly awaited in the public.

The Dutch court before which the process was initiated addressed the Court of Justice of the European Union with a question regarding the interpretation of the notion of public communication of the work. The question referred to the significance of the fact that the author never, in any way, published the work that was communicated by a third party.

The position taken by the Court of Justice is still controversial today, several years after the decision was announced. Namely, the Court found that for the existence of the act of public communication of the work using a hyperlink, it is important whether the action was done with the aim of gaining material gain. This is under the assumption that the work was communicated by an unauthorized person, and not by the author. In making the decision, the Court was guided by the following criteria:

Firstly, the Court emphasized the role of the user (GS Media) and the nature of its intervention in the context of the existence of intent, which includes the awareness that the action makes copyright-protected content available to other users, while those users would not have the opportunity to gain access to the work otherwise, i.e., without the intervention of GS Media.

Secondly, the Court interprets the concept of the “public” as an indeterminate number of potential viewers, which usually implies a fairly large number of people. In this context, the court again refers to the already established criterion of “new technical means”, as a different criterion from the one originally used, for the purpose of communicating the subject of copyright, as a condition for the existence of the act of public communication.

Thirdly, the Court finds that the fact that the communication was made for the purpose of making a profit is also important in this specific dispute and that the answer to the question of whether there was an act of public communication of work already publicly available on the Internet without restrictions (and without the permission of the author!) depended on whether the user acted with the intention of making a profit by sharing content.

The Court concludes that, when a hyperlink to a copy of a copyrighted work is posted for profit, there is a presumption that the person who posted such a link has previously performed the necessary checks to ensure that the work is not illegally published on the hyperlinked website. For this reason, there is a further assumption that the posting of the link was done with the knowledge that the link leads to protected content, as well as accepting the possibility that the necessary consent to share that content was missing, i.e., that the content was shared illegally.

So, if you want to make money by sharing someone else’s content, it is assumed that you knew that the content was illegally communicated. This means that the opposing party does not have to prove your negligence. More importantly, it depends on your conscientiousness whether the copyright has been infringed. Pretty ungrateful position, right?

Inline Framing – Another Controversial Issue

inline framing

How many times have you seen a small window showing video content at the end of an article on the Internet? In this way, a website includes previously recorded interviews, recordings of various events, celebrations, gala events attended by celebrities, and the latest music videos. It is not uncommon for site administrators to frame content that is protected by copyright or other related third-party rights (e.g., the rights of performers, phonogram producers, etc.).

The technique of dividing the screen into more segments (“frames”) has become obsolete. Today, “inline framing” has taken its place – a method of embedding content from another source into the web page.

As with hyperlinking, the permissibility of sharing content this way is controversial. Recent case law on this topic is rather limited, which is discouraging, given the frequent application of this method.

In the BestWater International[7] case under the Court of Justice of the European Union, the question was whether linking the content available on one site using the framing technique is an act of public communication, even if the criteria of the new public and the use of new technical means are not met. The dispute arose when the defendants, using the framing technique, embedded protected content, a two-minute video of the plaintiff, within the framework of their web pages so that visitors to their websites acted as if they were creating content. What the visitors saw when they accessed the defendants’ sites was the content that was on “YouTube”, and which, according to the prosecutor, was posted on this website without their permission.

In the decision, the Court states that the mere fact that copyright-protected content that is available without restriction on one website is incorporated onto another page using the framing technique does not lead to the conclusion that it is an act of public communication of the work. Here again, the Court refers to the criteria of the new public and the use of the new technical means.

In a recent judgment[8] in the case VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz, the court decided that, if embedding (framing) protected content circumvents measures adopted by the copyright holder to prevent framing, that constitutes communication of the copyright-protected content to the public.

Thus, the Court’s position is that copyright infringement exists if another person frames content available on a web page, even if the criteria of the new public and the new technical means are not met, provided that this circumvents measures that were initially aimed at preventing framing.

After this statement, the obvious next question is related to why do disputes occur which are related to the technical procedures which we practice every day, without questioning their legality. Neither at the level of the European Union nor in Serbia, is there legislation that would directly regulate the issue of the permissibility of framing in the context of copyright protection and the conditions under which this technique could be used.

On the one hand, linked and framed content is an integral part of the everyday online user experience. It could be said that the functioning of the web would be compromised if the possibility of using links were significantly limited, and the speed of access to information would certainly endure. On the other hand, the rights and copyright-protected interests of authors and holders of related rights must be considered. It is the legislator who should have the last word here since there is a justified interest in resolving the issues in question on both sides.

Compensation for Damages and Removal of Content

The Serbian regulations provide authors, as well as performers and some other categories of creators, with the opportunity to protect their rights in court. As a rule, the protective measure will more often refer to actions taken on the Internet, than to some other form of illegal conduct. The courts are in an unenviable position as the law leaves a lot of room for interpretation.

In Serbia, as well as in the European Union, authors have the exclusive right to publish their work and to make it available to the public later in the way they choose. This includes public communication via the Internet. Thus, the author has the right to prohibit others from using any work, including making the work available to the public on the Internet.

Creators whose rights are violated may seek court protection. This protection, among other things, includes the possibility for the court to award monetary compensation to the author, to prohibit others from violating the rights of the author in the same manner in the future, or to order to remove the copyright-protected content.

The Future of Linking – One Step Forward, Two Steps Back

hyperlink

Despite all the possibilities the Internet offers today, we cannot ignore the fact that the Internet has become a meeting place for various illegal activities. We are deceived that what happens “in the cloud” remains there. Numerous lawsuits resulting from actions taken online are proof of this.

Linking, although necessary, can pose a danger to the person using it. That is, for most people. Therefore, it is important to use what the Internet offers – which is a plethora of information, and to act in accordance with the new knowledge we have earned. In this way, we could avoid participating in complicated, long, unpleasant, and expensive court proceedings.

As far as the legal aspects of using hyperlinks and inline frames are concerned, the issue of conditions and permissibility of their use will, unfortunately, be decided in court. That is how it is today, and we believe that it will remain so in the near future.

Modern society demands that both issues be considered by the legislative body. The task is certainly not easy – two parties should reconcile – and both of them are right.

Authors and performers have the right to be protected, however, this should not lead to significant limitations to the flow of information, freedom of speech, and the right to be informed.

Everyone else is entitled to free access to the Internet, and thus the exchange of information.

Court decisions remain in the air between the two opposing ends on the spectrum. We can only hope that, at least at the European level, there will be an intervention of the legislator for the purpose of precise regulation of disputed issues, in a way adapted to the requirements of the digital environment, and thus to the establishment of some certainty.

Until then – be careful what you share on the Internet.

[1] Source: https://techterms.com/definition/link
[2] Source: https://www.techopedia.com/definition/23356/deep-linking
[3] Source: https://www.techopedia.com/definition/7606/hotlinking
[4] For more information you can read decisions of the Court of Justice of the European Union Svensson and Others (C-466/12) or BestWater (C-348/13)
[5] The text of the verdict is available on https://curia.europa.eu/juris/liste.jsf?num=C-466/12
[6] The text of the verdict is available on https://curia.europa.eu/juris/liste.jsf?num=C-160/15
[7] The text of the verdict is available in French and German on: https://curia.europa.eu/juris/liste.jsf?num=C-348/13; and the analysis of the procedure is available in English on: https://globalfreedomofexpression.columbia.edu/cases/bestwater-international-gmbh-v-mebes/
[8] The text of the verdict is available on https://curia.europa.eu/juris/liste.jsf?num=C-392/19

Latest Post

STAY TUNED

Stay in the loop with the most important updates