The Web is illegal – provisional

By Nick Holmes on January 25, 1997
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Filed under Pages on the Web

A Page on the Web, published in the Solicitors Journal, January 1997.

The intervention of Christmas in the Solicitors’ Journal schedules denied a more timely comment on one of the most interesting Web law cases yet: The Shetland Times v Wills and Zetnews Ltd.

The Shetland Times was successful in obtaining an interim interdict (injunction) against the defenders, managing director and publisher respectively of the Shetland News site, preventing the latter from providing on their Web pages hypertext links to specific articles published on the Shetland Times site.

If the arguments in this case hold, this would amount to saying that the Web is illegal. The Web by definition exists only because there are hyperlinks between otherwise unconnected sites. The vast majority of these links have been created without the permission of the linked site. Remove them and of course the Web fragments and becomes virtually (sic) useless.

So if the law says such links are illegal, the law is an ass. We know it’s entitled to be an ass, and it is understandable that it may on occasion be so when applied to a medium which has only recently established itself in commercial terms. But this view is serious stuff for Web publishers — will it hold up?

The grounds of the action were twofold: that there was an infringement of copyright under s 20 of the Copyright, Designs and Patents Act 1988 by the inclusion of protected ‘cable programs’ in a ‘cable program service’ and that the copying of headlines constituted an infringement under s 17 since they were ‘literary works’. The judge agreed that there was a prima facie case on both grounds and granted the injunction sought.

Clearly the inclusion of proprietary images or logos in hyperlinks without permission involves copying protected material. And if the judge’s findings in this case hold, links incorporating ‘eight or so words designedly put together’ would include copies of literary works. The case considered the headlines copied, but not it appears the URL’s themselves (which activate the links): it seems extremely unlikely that a URL could itself constitute an original literary work. More wide ranging would seem to be the protection afforded by s 20, since a ‘cable program’ is defined as any item included in a ‘cable program service’. Whether a Web page is a cable program service may depend on ‘technical material’ not available to the judge in this case.

In general, most Web publishers welcome links being made to their sites, since this increases traffic to their pages, thus fulfilling their principal aim, to distribute their service as widely as possible. Complaint will only occur where sites see damage rather than benefit in such links. The Shetland Times foresaw a reduction in advertising revenue caused by readers being directed by the Shetland News directly to their articles rather than via their home page, but this would have been the case also if the links had not (prima facie) infringed copyright. The commercially sensible course for Web publishers is to design individual pages and control access to them in such a way as to optimise the traffic they do get, whether or not it originates from the home page.

Looking beyond copyright, the context in which links are made is as important as the links themselves, for it is likely that actions based on passing off or misrepresentation may be brought if users are misled by the context of a link into thinking that linked materials originate from the linking site or that a business relationship exists between the two parties.

We can be sure that these matters will continue to exercise and extend the minds of IP lawyers who will of course advise clients to err on the side of caution if decisions like this appear to impose stricter requirements on Web publishers. But will the courts outlaw the Web? I think not.

The facts of the case and related materials are published on the Shetland News site at http://www.shetland-news.co.uk/.