By Susan Doron
Until less than two decades ago, print was the major medium for distributing written documents. Within a printed document, an author could refer the reader to another source for further reading or explanations on a specific topic through the medium of footnotes or references, which the reader would then have to search for in libraries, often spending hours if not days doing so.
The world of the written word is far different today, as more and more written material is available on the internet. Today, when authors of documents or owners of websites (who are often unidentified) want to enable readers, now called users, to read more on a particular topic, they can provide a link, which gives instant access to another document on the worldwide web. Linking now enables the user to determine how deeply to explore a particular topic
What is a Link?
The internet makes it possible to access content stored in millions of files of individual computers in what is termed “the cloud”. A link, consisting either of textual material or images, simply connects between the content of two different files or different parts of the same file. A link may lead to another file in the same web site, or to a file located elsewhere on the internet, providing quick access to information that would otherwise be much more difficult to find.
How Do Links Operate?
- EMBEDDED LINK: Otherwise known as “direct linking” or “inline linking”, embedded links clearly direct the user to a different, identifiable website, although they do not necessarily include the name of the website that is being linked to.
- DEEP LINK: Deep links direct the user to an interior page within another website, bypassing the main page of that website. Like embedded links, the text/image does not necessarily need to include the name of the website being linked to. By bypassing the home page of the linked-to site, deep links can create confusion as to which site the linked-to material belongs.
- FRAMING: Framing enables a website operator to divide the website into different sections or frames. These frames are actually taken from a different web page, enabling the user to view content from another site alongside content from the host site. For example, a site for upcoming concerts in the area may frame the window of the ticket agency where tickets can be purchased.
A Legal Primer for Text Professionals
While linking is usually legally permissible, as is the case of a reference to another source in a printed document, there can be situations where linking might infringe on the intellectual property rights of the creator of the original material.
Copyright law in the U.S. and Europe provides authors, artists and others the right to prevent people from using their works by granting certain exclusive rights to the creator of a text or work of art. Unless creators explicitly transfer rights to another entity, those rights remain their property. International copyright law refers to the interplay between the copyright laws of different nations, and there is no single international policy regarding copyright. Once a work is fixed in a tangible medium, such as a disk or hard drive, copyright law automatically applies.
The U.S. Copyright Act grants five rights to a copyright owner:
- the right to reproduce the copyrighted work;
- the right to prepare derivative works based upon the work;
- the right to distribute copies of the work to the public;
- the right to perform the copyrighted work publicly; and
- the right to display the copyrighted work publicly.
The moment someone creates an original work, whether it be a jumble of words, or a few lines and shapes, that work has copyright protection, whether or not the creator has registered the work. However, in order to sue for copyright infringement, the creator must at some point register the copyright.
ARE THERE EXCEPTIONS TO THE COPYRIGHT RULES?
Fair use: Even when a work is copyrighted, there are circumstances when the material can be used without the creator’s permission. The major exception to copyright protection is the Fair Use Doctrine, which enables others to use copyrighted material when it advances public interests, including criticism, education or scholarship, especially if only a small amount of the work is copied. Generally, if the creator’s material is used to generate income, that is not considered fair use. Even when the use of the creator’s material falls within the fair use exception, the user is legally expected to give the creator credit for the material.
Implied Consent: There are circumstances where the fair use exception is not applicable, but where the author’s approval for the use is implied. For example, if a message is posted to a public email list, forwarding and archiving seem to be implicitly allowed unless explicitly forbidden. Users should be aware that there is no implied consent to use someone else’s material if the site expressly prohibits such use, if the link is to a site containing prohibited content (such as illegally downloaded music), or if the type of link, such as framing, is so far removed from the original work that it is difficult to argue implied consent.
Public Domain: Works that are in the public domain can be used freely. Such works include works where the copyright has expired, works whose copyright was never properly established, and works created by the United States Government.
Is Copyright the Only Legal Impediment to Linking?
Copyright is not the only legal consideration to bear in mind when linking. Others include:
- “Passing Off” and Plagiarism: Presenting someone else’s images or words as one’s own is considered passing off or plagiarism, which are legally actionable offenses.
- Derivative Works: Derivative works are new works based on originally copyrighted material, such as a movie based on a copyrighted book. Usually, only the creator of the original work holds the derivative rights. Therefore, making extensive use of copyrighted material without the creator’s permission without directly linking it, in order to give the impression of creating something ostensibly new on a website, is a copyright violation.
- Defamation: Defamation is a false statement made about a person or organization that damages their reputation. In some cases, a link can be defamatory. For example, if the site reads, “This man killed my cat,” and contains a link to a particular person, the link is defamatory, although the statement itself doesn’t expressly identify a particular person.
- Trademark infringement: Trademark infringement occurs when one party uses the trademark of another in a way that is likely to cause confusion mistake or deception with the user. Any link that falsely leads the user to conclude that the web page author is connected with the trademark owner or that the web page is sponsored by the trademark owner can lead to a trademark infringement case.
How Do We Stay on the Right Side of the Law?
Usually, in the absence of a specific prohibition against linking, a link is legally permissible when it acts as a reference to other information. In many cases, the site or author being linked to is pleased to have its material referenced. In essence, such a link serves as a free advertisement. A good rule of thumb is that if such a reference would be acceptable in print, it is also permissible on the web.[i]
Nonetheless, certain precautions should be taken. When linking someone else’s material, the host site should use only a limited portion of the original work and should give credit to the original author. Before posting material online, the writer should allow himself enough time to obtain permission from the original author.
Before linking to another site, check the copyright policy statement on the host’s page, as well as the host’s linking policy. Bear in mind that similar rules apply to the use of material on the web as to printed use. And finally, using common sense and courtesy can be the best defense against legal actions.
Navigating Linking Etiquette
Don’t mix business with texting: Business letters may enjoy copyright and should not be copied or linked to without permission.
Educators and students, get out your calculators!: An educator or student can use or link to 10% or 1000 words (the smallest amount of the two) of text material and 10% or 3 minutes (smallest of the two) of motion media works without obtaining permission from the copyright owner.
Can you keep a secret? E-mails may be considered copyrighted material unless they are posted to an open public site. As a result, you cannot post or link to private e-mails to your site, message boards or blogs without obtaining the author’s specific permission.
Some pictures really are worth a thousand (well, a few) words: In order to use images as a link, you must obtain the creator’s permission. This is true whether the image is a photograph, trademark or other original creation
Impressions matter: Do not link in such a way that you give the impression that you are the actual creator of the original author’s material.
Librarians beware: Librarians frequently use links to direct users to materials and information. They must be careful not to use too much quoted material in their links, and not to deep-link to other sites in such a way that the other site loses its commercial advantages. For example, when referring to an upcoming concert, librarians should not deep-link to the ticket-seller’s website without proper permission.
“Tweaking” can be dangerous: Originality: If a host site uses material from another site and only changes it a little, the original creator must still be cited. Only if the host site makes “substantial and creative” changes can it claim ownership or authorship of the material.
Not all quotes are created equal: When using a quotation from another website as a link to that website, it is often not sufficient to give the author credit. The quoted website may require that written permission be granted, especially if a large amount of material is quoted.
Size counts: When linking for purposes other than educational, if you link to a sizeable amount of the original author’s material, you should obtain the author’s written permission for such use. Linking to smaller amounts of the creator’s material should avoid the necessity of seeking permission.
Social media does not set you free: Posting items, particularly images on social media sites, such as the popular Pinterest or Instagram, does not relieve you of your legal obligation to obtain permission for use. You are also legally liable for linking to an item that has been improperly posted on a social media site.[ii]
The other guy did it: Just because another site linked to material without obtaining the creator’s permission, this does not give you the legal right to link to the offending site that used the material improperly, or to link directly to that material.
Whenever you are linking, remember one fundamental legal guideline: DON’T BE A PIG!!!
Remember your manners: check the rules, ask permission and link to a reasonable amount of material.
What Can Authors Do to Prevent Misuse of Their Material?
In addition to ensuring that their texts or images are copyrighted, by placing the small encircled © copyright symbol accompanied by the date and author’s identification, creators of web content can make it explicit that other parties are prohibited from copying their material. Authors can also use of one of a variety of security measures to prevent linking, including encryption of the documents, or various levels of passwords to prevent unauthorized access.
Content authors can also post express notices prohibiting or limiting third parties’ ability to link to their content. In these cases, the author could argue that the prohibition created a contract between the author and the user, and that the failure to abide by it was a breach of contact. There are also a growing number of websites, such as Creative Commons (http://creativecommons.org/) where authors can register or license their works and thereby protect their property interests in them while encouraging access.
Future Challenges for Editors and Others
Legislators and judges, as well as legal and text professionals are constantly searching for new ways to balance the need to protect creators’ rights with the ever-growing demands for more and freer access to information on the internet.
Action on recent legislative initiatives in the United States, the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) have been postponed, after the laws met with fierce opposition from a broad spectrum of jurists, academics and web users who argued that the legislation would result in censorship and burdensome regulation of the web.
A recent case brought in the U.S. District Court of Northern Georgia, Cambridge University Press et.al v. Becker, pitted academic publishers’ property rights in their materials against an educational institution’s ability to link to those materials free of charge for educational purposes. The Court’s ruling, which is considered highly favorable to the university’s right to make fair use of published materials, within certain limitations, such as the “10 % rule,” has generated a great deal of controversy, and is probably not the last word on the subject.
The tensions between the important goals of encouraging creativity and scholarship on one hand and protecting free expression on the other are tremendous, and the attempts to resolve them keep the law in constant flux. The never-ending flood of information provides great challenges to editors and other text professionals. Indeed, Malcolm Gladwell, the best-welling author of Tipping Point told a recent meeting of The Association of American Publishers, that good editors are needed more than ever to make sense of the “overwhelming amount of information out there.”[iii]
First, website writers should be aware that the law can vary among countries, with the United States, Canada, Australia and various European countries each having its own particular interpretation of the law. You must be aware of the law governing your own jurisdiction and that of the material being linked. Resources that may be helpful include:
The American Library Association (http://www.ala.org/advocacy/copyright/internationalcopyright/intro)
Bloomberg BNA: Telecommunications & Internet Law News and Analysis (http://www.bna.com/telecommunications-internet-law-t5992/)
Computers in Libraries Journal (http://www.infotoday.com/cilmag/)
Copyright Law of the United States (http://www.copyright.gov/title17/)
Cyberlaw Encyclopedia (http://www.gahtan.com/cyberlaw)\
Cyberspace Law for Non-Lawyers http://w2.eff.org/legal/CyberLaw_Course/index.html)
GigaLaw.com Daily News (http://gigalaw.com/)
Link with Love (http://linkwithlove.typepad.com/linkwithlove/)
Taylor & Francis Internet Reference Services Quarterly
[ii] Natalie Houston, “Pinterest and Link with Love,” The Chronicle of Higher Education, May 16, 2012,http://chronicle.com/blogs/profhacker/pinterest-and-link-with-love/40000?sid=at&utm_source=at&utm_medium=en
[iii] Jennifer Howard, “How to Protect Copyright is Key Topic at Publishers’ Meeting,” The Chronicle of Higher Education, March 14, 2012, http://chronicle.com/article/How-to-Protect-Copyright-Is/131177?sid=at&utmsourc…