Like many legal organisations, we have a Web site (what we havetechnically is a bunch of HTML files joined together and made available on aserver found through a Uniform Resource Locator). 1I do not hold it out as a particularly advanced or informative example of thegenre: quite honestly, we do not yet expend the resources or commit the internaltime to make it a candidate for SCL awards or commendation from Delia (Venables,not Smith). 2
We do not yet sell legal advice or information through it and sceptics mightwell say that it is essentially `brochureware’ and `advertorial’. I accept this:however, it also contains some reasonably provocative and stimulating articlesand material. In particular, though I say it myself, there is a section withsome informative, if (in parts) somewhat jaundiced, commentary on the imminentrevolutionary civil justice reforms as inspired by the Woolf reports.
I have recently come across an absolutely superb Web site which contains thetext of the recently published Civil Procedure Rules, practice directions, formsand protocols themselves in a well presented, user-friendly set of pages at theWeb site called `Beagle’ (http://www.beagle.org.uk/).I recommend it to all readers of this magazine interested in civil justicereforms (and indeed the cultural life of Plymouth). The site is modestlyuninformative about its provenance and purpose, but it is extraordinarilyhelpful. I have gained the impression that it is the work of HH Judge SeanOverend, but I may be wrong.
However, what I have done is created a link to that site from the Laytonssite. I have said how good it is and I have hyperlinked the word `Beagle’ withthe URL just given. The HTML source code is as follows:
< P > For the best current site on the topic, with which we could nothope to compete on information and presentation, look at <AHREF=”http://www.beagle.org.uk/ “Beagle < /A > and enjoy it! < /P >
I wonder whether we are infringing any rights by directing our hyperlinks tothird party sites.
According to the Shetland Times case (Shetland Times Limited v DrJonathan Wills and anor [1997] FSR 604), this is a possibility.
Linking and the law is an interesting topic at present because the concept oflinking has no applicability outside the World Wide Web and creates novelproblems for analysis based on intellectual property rights, in particularcopyright.
How Copying Works in the Context of Web Links
The author of a Web page who links to another page does not copy and publishin the conventional sense. The Internet is based on copying of digitalinformation, divided into packets, and reassembled after transmission throughnumerous rat-runs in networks around the globe. The final copy of the displayedWeb page is based on what is assembled by the viewer’s browser in response tocommands given to it by the author’s HTML file whose address he has asked thebrowser to find. That HTML file contains various elements, including:
- text and its formatting;
- the URLs of any external information and instructions for incorporating that information;
- links to other files which it might be helpful to display.
When the third party operates the link, as suggested by the author (click on`Beagle’), the original owner’s page may be displayed on the third party’sscreen. It can be displayed as a result of choice by the viewer (the clicked-onhyperlink) or automatically (the displayed image). Thus, albeit prompted by theauthor, it is the third party viewer whose machine requests copies of theoriginal site owner’s Web resources and displays them. This is not conventionalcopyright analysis. What is happening is that the author is putting the means tomake copies of the owner’s work into the hands of the viewer. There is,nevertheless, probably infringement somewhere and this is discussed below.
What Prompted the Shetland Litigation?
It is understandable why the Shetland Times and the US plaintiffs in thevarious reported cases 3 have been unhappy withunauthorised links. They have felt that their intellectual property rights werebeing infringed, that there was unfair competition, and that their home pages,which contained lucrative advertising, were being by-passed.
This is certainly the case with the Shetland Times: Dr Wills’ Shetland Newsdeliberately quote the Shetland Times’ headlines and created the hyperlinks fromthere. People thus read the headlines, clicked on them and went straight to theShetland Times’ Web site without going through the front page. The ShetlandTimes hung their hat on arguments based on infringement of copyright. Theinterim interdict was granted by the judge, Lord Hamilton, on two grounds:
- their Web site was a cable programme, rights in which were infringed by the links to it which were themselves items in a cable programme
- the headlines, which formed part of the links in this case, were copyright works.
However, those advising on the topic should be aware that Shetland News isgoing to something of a red herring in most cases. Beyond the highly irrelevantfact that it is a Scottish case, this is for two main reasons:
- it is an interlocutory decision in litigation which was eventually compromised on terms which protected both parties ‘commercial interests
- it may well be right on what it did decide but it was based on very narrow facts which are unlikely to be applicable to most complaints about linking.
Thus, the case is not necessarily authority for the proposition that you canuse copyright to prevent someone creating a link to your home page or any of itsconstituent files.
Can Web Sites (and their links) be Cable Programmes?
The answer is: `yes, but . . .’. Strangely, they come within the technicaldefinition in s 7(1) of the Copyright, Designs and Patents Act 1988 (CDPA) as`items’ included in a `cable programme service’ unless the exception based oninteractivity can be applied.
The objection based on interactivity
This exception in s 7(2)(a) essentially means that an `interactive’ serviceunder which the recipient provides information to the initial sender of theservice (beyond that necessary simply to operate it) falls outside thedefinition.
Lord Hamilton in order to obtain prima facie grounds to grant aninterim injunction needed to find that the linking site (Shetland News) wasmaintaining a cable programme service but he gave particular consideration tothe nature of the Shetland Times Web site as a cable programme service. Inrejecting the argument based on interactivity, he was much influenced by thefact that the main purpose of the plaintiffs’ Web site was to provide news. Thefacility to return comments and suggestions by e-mail was secondary. One of theissues not considered in any detail, given the interlocutory nature of the ShetlandTimes decision, was how Web sites in general operate technically and how anyparticular Web site under consideration might work. It appears that there ismuch more scope for examining the nature of operation and control by a thirdparty viewer’s browser software. Attention might be drawn to the use of cookies’and `apples’ which are taking Web sites into new areas of interactivity.
The objection based on `sending’
One objection to including Web sites within the definition of cableprogrammes is that a Web site does not `send’ information but rather permits itto be collected by a recipient when the recipient’s browser enters the URL. Thisis probably a strained and limited definition of the word `send’ because it isperfectly possible to `send’ something in response to a request.
The real basis of the decision: the quotations from the headlines in thelinks were `items’
The actual basis of the decision seems to be that the `items’ described ascable programmes wrongly included in another cable programme were the ShetlandTimes’ headlines. The decision is correct only if those items were the`headlines’ and protection is afforded to headlines. If the basis of thedecision is that any element of the linked to site was an `item’ which mightinclude a page reference or a single ASCII character, then the nature ofcopyright protection would be unduly extended.
The answer is that a qualitative approach to the definition of `item’ must betaken and this is consistent with the discussion of headlines as copyright worksdiscussed below. The point is that both elements of the decision seem tostand or fall together on the protectable nature of headlines.
The question arises: what if Shetland News had not quoted the headlines buthad made some other reference to bring viewers’ attention to the stories? Theonly part of the `Shetland Times’ cable programme that would be included is theURL, directory structure and file name. Given the nature of the Web and the factthat putting up a site must be taken to be inviting links of some sort, theseshould surely not be protectable as `items’. There will be other grounds foralleging infringement.
Are Headlines Copyright Works?
The principal uncertainty in the Shetland Times case concerned thestatus of headlines as literary works. There is considerable case law to theeffect that titles and the like do not have copyright protection. However, thecourts do not appear to have looked at the importance of the headlines to thenews industry. It appears clear that many headlines, especially those in thetabloid press are the result of creative effort and require original skill andlabour and they should probably be distinguished from `titles’. 4
In the Shetland Times case, Lord Hamilton had the advantage of aconcession that a headline was a literary work, although he recognised that thepoint was arguable. Thus, the finding that there was a prima facie breach ofcopyright was wholly dependent on the fact that the author’s links contained theowner’s headlines which are both `items’ in a cable programme service andindependent literary works. But once again the analysis should have beendifferent had the Shetland News not simply used the headlines to create thelinks but relied on some other mechanism.
Alternative Ways of Producing Links
The straightforward links to Beagle do not work in the way that causedproblems in Shetland. I do not think that the author of the BeagleWeb site couldor would wish to criticise me for linking in the way we have done from theLaytons Web site. We have linked to the home page. We have described the site,both in the hyperlinked text and in the reference to the URL itself. For what itis worth, if it is relevant, we have been very complimentary about the site. Wehave not attempted to pass it off as being information generated by our site.And our links do not incorporate copies of creative, protectable items such asheadlines which was one of the factors which caused the judge to find againstthe Shetland News at the interlocutory stage.
Alternative Ways of Alleging Infringement
Notwithstanding all this, and looking at the analysis of the process givenabove, clearly we are copying something, or causing something to be copied, orinciting copying or even providing an `article’ designed or adapted to makecopies which will indeed cause copying to be made. Various of the direct orindirect infringement sections of the CDPA could be used. By its very operation,copying happens on the Web in an all pervasive way and digital copies can end upon the screen of any browser. So the linked to site might well complain ofinfringement but this will be subject to defences.
Defences
The fact is that, in general, putting HTML documents at a uniform resourcelocator implies that you expect to be contacted. You want to be reached duringthe course of a search or a surf and you want search catalogues like YAHOO! andcrawlers like ALTAVISTA to reach you. If you want to channel resources through aparticular route, and make information available only on the fulfilment ofcertain conditions, the technical tools are there to achieve this. If you wantto put up notices forbidding linking, you may do so and they may, in certaincircumstances and for certain purposes, be effective.
Generally speaking, I think we probably have an implied licence to link or weare engaging in some sort of fair dealing.
When will Linking be Unacceptable?
I suspect that the judges will find ways to ensure that commerciallyunacceptable practices do not happen. They may well need to use some of theanalysis of remote copying discussed above. A broader approach to infringementthan occurred in the Shetland Times case may well be available and thecourts will then need to find ways to dispose of the implied licence and fairdealing defences.
The concept of unfair competition has no place in English law but the judgesknow how to deal with it. It is well worth looking at the judicial process whichtook place in the well-known One in a Million 5case relating to domain name piracy to see how the courts are capable ofstamping on unacceptable commercial practices.
I suspect that in most complaints about linking practitioners will have toforget completely about what the Shetland Times case decided and look at thecommercial realities of what is happening on the ground. 6
In any event, I hope I have explained why our own links on the Web, inparticular to Beagle, should be unobjectionable in their context.
Endnotes
1. http://www.laytons.com if you’re interested.
2. http://www.venables.co.uk/legal/ is well worth a visit.
3. Washington Post and others v Total News and others;Ticketmaster v Microsoft.
4. `Freddy Starr ate my hamster’; `From Toe Job to No Job’;`It’s Paddy Pantsdown’ `Would YOU sleep with this man’, etc, etc.
5. British Telecommunications plc and Others v One in aMillion Limited and Others [1999] FSR 1; see also Mr Jonathan Sumption QCatfirst instance ([1998] FSR 265) reported sub nom Marks & Spencer plc andothers v One in a Million.
6. I am grateful to Chris Reed of the IT Law Unit, QMW forgiving me access to a far more detailed article on these and other issues, to bepublished shortly in the Indiana Journal of Global Legal Studies.
