Does hyperlinking (including link to a page) amount to

INTRODUCTION

Internet has been very helpful to everyone, for every small or big reason. Type anything and it has its answers ready. When the internet had just been launched, there was a monopoly over providing the connection which was then handled by VIDESH SANCHAR NIGAM LIMITED (VSNL). It was the first publicly available internet service in India (1995). And from then on, with the advent of growth and skills, today we have different internet providers with highest speed, less money, option of choosing connection plans according to our usability, etc.

Year after year, with the advancement in technology, almost every information became available on internet. The words "Google" and "Internet" are often used interchangeably but they definitely have different meanings. In a way, we can say that Google is a subset of Internet that provides us with large amount of information. Now to talk about information, it means that somewhere someone is writing these articles and giving the information and statistics based on which we, the general public refer it for our usage, whether for pure knowledge or understanding or using it for any project/assignment/work, educational purposes etc.

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And here comes the question whether using such articles or links in our work amount to copyright infringement.

OVERVIEW OF COPYRIGHT AND ITS MEANING

"Copyright", so far as the name suggests, means the right to make copies.

By definition, Copyright is the exclusive and assignable legal right, given to the originator for a fixed period of time; to print, publish, perform, film, or record any literary, artistic, dramatic, musical, cinematographic film or sound recording.

The term of copyright exists till the life of the originator plus 60 years after the death of the originator.

Only the Originator has the right to sell his rights or assign his rights to someone else and for a fixed period after which he again gets the exclusive rights over his work.

The concept of copyright came into existence in order to provide protection to the original work of the originator and prevent it from being misused by anyone. The idea behind giving protection is to motivate the originator to keep producing such works and in a way contribute to the society and also give credits and rewards to them for their creation.

COPYRIGHT INFRINGEMENT AND INTERNET

The copyright holders must be ambivalent when it comes to internet.

On one hand, it gives them the information that they are seeking and help them in their respective projects or assignments, helps them to be aware of all the things happening around the world, helps them to go through various sectors of work whether it be literary, musical, dramatic, artistic, films, etc.

And on the other hand, it also makes available his work on the internet which like him, many people can view it and can copy it according to their needs.

He can however choose to limit his work(s) if he has any plans for profit making out of those but he also has to know that he cannot sue any person for copying his work or using certain parts from his work to enhance theirs.

The reason is that Internet is network of networks and it works on a humongous platform. In addition to this, following are further more reasons why it is a peril for Copyright holders:

1. Easy accessibility from anywhere, at any time, by anyone without any encumbrance;

2. It is a huge platform for accessing information within a quick time and low cost;

3. Publishing and distribution costs are minimal;

4. The original and copy works are not easily differentiable.

The Copyright Act does not explicitly deal with the words "digital works" or "internet". Sec 14 of the Act does deal with computer programmes but it does not provide for any piracy check on the internet.

It is true that anything available on the public domain is for the use of the public and today with social media growing rapidly, is hardly a matter of seconds that certain links or for that matter photos, songs, videos, etc. are shared on various social platforms, purely to give a background of why it is liked by the person or just to make it more popular.

But if such sharing is done with an intend of profit making, going over the hard-work of the originators then that act is an infringement of copyright and the concerned party can sue the infringer.

Hypertext links between sites' web pages provides the ability to connect to related ideas or matter that one is looking for and create communities (i.e., provides connections to similar matter/information that one is looking for). It is often represented as bold or underlined text, or as an image. By clicking on the link, the contents of another Web page referenced by the hypertext link are then displayed by the Web browser.

TYPES OF LINKS: SURFACE & DEEP LINKING

Surface linking is where the home page of a site is linked.

Deep linking is a link that detours the home page and goes straight to an internal page within the linked site. While enabling users to surf the net fluidly from one Web site to another, this practice also raises copyright issues.

A simple link from one Web site to the home page of another Web site does not normally raise concern, as the use of such links may be associated to the use of footnotes to refer to other sites. Also, no permission is required to copy a link to a site, either because the Web site owner has given an implied license to link by posting his material on the Web, or by characterizing such linking as fair use.

The problem arises only with regard to the practice of deep linking. Deep links defeat a Web site's intended method of navigation. Further, deep links may steal advert business from the linked site's homepage, thereby decreasing the revenue that could be generated from advertising which is supposedly dependant on such adverts onto the site.

Below mentioned landmark case studies will help us understand the scenario of hyperlinking and copyright infringement better and how it affects the rights of the copyright holder!

In the Ticketmaster Corp. v. Microsoft Corp (filed on 28th April, 1997), the plaintiff, Ticketmaster Corporation sued Microsoft for the practice of deep linking without permission, within its site rather than to the home page and claimed among other things that Microsoft effectively diverted advertising revenue that otherwise would have gone to the plaintiff. During the pendency of the court proceedings the parties entered into a settlement agreement whereby Microsoft agreed not to link to pages deep within the Ticketmaster's site and agreed that the links will point visitors interested in purchasing tickets to the ticketing service's home page.

In a Scottish case, Shetland Times, Ltd. v. Dr. Jonathan Wills and another (1997), the plaintiff, Shetland Times operated a Web site through which it made available many of the items in the printed version of its newspaper. The defendants also owned and operated a Web site on which they put out themselves as news reporting service.

Defendants reproduced a number of headlines letter-perfect appearing in the Shetland Times. These headlines were hyperlinked to the plaintiff's site. The judge agreed that the plaintiff had presented a prima facie case of copyright infringement based upon the United Kingdom's law.

Thus the question that arises is that what liability is there for the content on a linked site?

A hyperlink used by a Web site does not directly cause copying of any substantial content by anyone, but instead merely provides a pointer to another site having same or similar matter which the user seeks to have.

By virtue of sections 14 and 51 of the Copyright Act, 1957, (dealing with the meaning of copyright and infringement of copyright respectively), reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in case of deep linking the linking site is not reproducing any work. The reproduction, if at all any, takes place at the end of the user who visits the linked page via the link.

Can the linking site said to be issuing copies of the work or communicating it to the public?

Speaking of it technically, the linking site is only informing people about the existence of the work and giving the address of the site where the work is present. It is the user's discretion to access the work by clicking the link.

CONCLUSION

There are many who eulogize the concept of free sharing of copyrighted material on the Internet. For them, reading and gaining knowledge is secondary, the first thing that they do is to share the links on some social media platform so as to make other people aware to about a topic that he is interested in. No doubt, sharing of knowledge is good but sharing of someone's hard work without giving them credits and knowing their credentials is unfair on the originator's part.

However, the originators and intellectual property rights holders need to feel sure that they can protect their property from piracy, misuse and control its use, before they are willing to make it available online.

Therefore, the government should strive to ensure that the laws of copyright adapts to the new technological environment in a way that feeds and encourages creative activity rather than just giving inhibiting or overwhelming appreciation to the writers.