The Internet Rights Forum
RECOMMENDATION REPORT
HYPERLINKS: LEGAL STATUS
Published on March 3rd, 2003
Contact :
contact@foruminternet.org
The Internet Rights Forum
RECOMMENDATION REPORT
Published on March 3rd, 2003
Contact :
contact@foruminternet.org
A principle must be stated: the establishment of a link is free. This principle is justified by the nature and the very functioning of the Internet. However, in our society, a freedom is not absolute and a proper balance between constraints and freedom must be achieved. In this respect, the work of the Forum, having brought together as broad a range as possible of those involved with the Internet, finally succeeded in reaching a consensus on the general concept of a hyperlink (A), as well as the recommendations to be made to these various participants (B).
The Internet Rights Forum has therefore decided to make reference to a freedom to link in respect of third-party rights. This expression implies a legal analysis of the risks of undermining third-party rights when making links. This freedom is thus under the control of the rules of law aimed at preventing cases of abuse or the undermining of rights on the site or on the linked source.
1. – Freedom to link
No one is obliged to create a site, to creat a link or to “surf” on the web. This means that once a person decides to put a resource on line on the Internet, this person must accept the implicit functioning, spirit and rules thereof.
The hyperlink is an essential element in the web’s functioning. It permits a progression, i.e. the passage from one site to another, therefore, from one property to another, whether remaining at the front of the site, or whether entering the site to cross through or visit it[1]. The party utilizing the link would have to answer only for any improper utilization, first on the basis of general law and then on that of a specific set of laws, by invoking infringement, for example, on copyright law.
If the link is merely a “path”, a notion which constitutes the basis of the freedom to move around on the web, the consequence of this is its neutrality with respect to the laws which may govern it. The link, per se, does not fall within a given set of laws and cannot be appropriated for the benefit of a given legislation. This means, according to the suggestion made by Marie-Hélène Tonnelier and Guillaume Teissonnière in the work group, that the use of the hypertext mode in itself does not corresponds to any specific legal scheme and the laws governing the conditions of its use, as the case may be, will therefore depend on various factors, the most important of which appears to be the legal system that governs the contents toward which the hypertext is directed (in addition to the cases in which the link itself reproduces/utilizes a protected content).
2. – Respect of third-party rights
The legality of a link must be analyzed, case-by-case, in light of the possible undermining of third-party rights that may constitute the establishment of this link.
For example, if the hyperlink is utilized to refer the surfer to a trademark, the legality of the process must be analyzed in light of trademark law. If a database is involved, the sui generis laws governing databases must be consulted as well as the specific conditions governing the application of these laws ("re-use" or "extraction" criteria for portions of the base which are qualitatively or quantitatively substantial). Lastly, the question of the encroachment of the copyright upon the link come up when a protected work is linked. All these dilemmas may accumulate to burden the nature of the contents of these various links.
The Internet Rights Forum has studied various situations in which the implementation of a link comprises a risk of undermining the rights of the linked party (see appended chart).
The Internet Rights Forum wishes to make all recipients of this report aware of how unrealistic it would be to make the establishment of links systematically subject to an authorization process.
However, given the prejudice which can be caused by the establishment of certain types of hyperlinks, the Forum would like to make certain recommendations to those establishing hyperlinks from a website. One last recommendation is also made to site-owners.
1. – Recommendations to persons establishing hyperlinks: a code of usage
The Internet Rights Forum recommends that persons establishing hyperlinks:
1) obtain the prior approval of the owners of the linked-resources in the following cases:
- for all cases of the inclusion, via a hyperlink, within a given web page, of any page belonging to a third-party site or of files which are protected by copyright.
This includes what is known as "framing" and "in-line linking" techniques.
- for deep links made directly toward files which can be downloaded or executed (graphic, music, videos, software) protected by copyright,
Such is the case of the direct link to a MP3-type software program or musical file available for downloading onto a third-party server.
- for reproductions, designed to accompany or to illustrate a hyperlink pointer, any work protected by copyright (texts, images, videos…) belonging to the linked site.
This is the case when the creator of the link reproduces an image belonging to another site to illustrate an established link to this site.
- for reproductions designed to accompany or illustrate the pointer of one or several hyperlinks to the resources of a given site, of a significant part of the contents of these resources or of several of their headings, when the producer of the database prohibits the extraction or re-use of the data.
This might apply, for example, to the reproductions of job offer summaries, to illustrate hypertext links toward several job offers.
- for the establishment of several deep links toward the resources of a given site, when the base producer prohibits the extraction or re-use of the data.
Numerous links to press articles belonging to a given site are indeed apt to be prohibited by the publisher of this site and therefore require that permission be requested.
- for links exploited autonomously.
This is the case when the linking site makes sales when establishing links, in particular by invoicing the consultation of the works to which it refers.
2) to request permission from the owners of the trademarks concerned:
- for reproductions, on the pointer of a link, of a trademark designating products or services which are identical to those of the owner of the linked site, or similar to them if there is a potential confusion in the public’s mind.
This is essentially a textbook case. It is prohibited, for example, without the permission of the owners of the trademarks concerned, to provide a link to a car manufacturer’s site, using another car manufacturer’s trademark.
- for reproductions, on a link’s pointer, of a trademark designating products or services which are identical to those proposed by the linking site, or similar to them, if there is a risk of confusion in the public’s mind.
It is recommended that a car manufacture, for example, avoid affixing a competitor’s trademark on an established link to its own site, unless it has the permission to do so.
3) To make sure that the presentation of the link, whether simple or deep, would not lead the visitor to believe that a cooperation existed between the linking site and the linked source, particularly when the nature of the linking site, the linking page or the commentary accompanying the pointer is apt to undermine the image of the linked work.
For example, a link from a pornographic site to the site of an independent artist, which implies that the two collaborate, could undermine the integrity of the linked site.
4) To see to it that a deep link not be made to a site constituting a work of art in its own right, for which the author might require a specific consultation mode.
5) to accompany the pointer of any reference hyperlink permitting the identification of the holder or author of the linked source (name of the site to which the linked source belongs, reference to the home page of this site, name of the author of the linked source, etc…).
6) for any type of link, as a measure of courtesy, to inform the owner of the site or of the linked source of the fact that a link to it has been established.
7) to respect the hyperlink policies clearly posted by the site holders.
2. – Recommendation to site holders
The Internet Rights Forum recommends that the websites holders clearly post the policy they intend to implement with respect to hyperlinks, i.e. to designate the types of links and presentation modes they may or may not accept.
This policy must take account of the fact that only links apt to undermine a right may be prohibited. Thus, the simple and deep links established to web pages and made to replace the linking page or showing the linked page in the surfer's window may, theoretically, be prohibited.
APPENDIX – SUMMARY CHART
The probabilities that the hypertext link would undermine one of the rights studied in the report are represented on the following charts.
The absence of a dot means that there is little or no probability that one of the following rights be undermined. White dots (°) indicate a simple probability and black dots (●) express a greater probability.
I. THE RISKS OF UNDERMINING A RIGHT ACCORDING TO LINK TECHNIQUES
|
Types of links / Types of violations |
Simple |
Deep
|
Transclusions
|
||
|
|
|
Page* |
File** |
Page* |
File** |
|
Unfair trade practices |
|
o |
o |
o |
o |
|
Reproduction right |
|
|
|
|
|
|
Public communication right |
|
|
o |
● |
● |
|
Moral right |
o |
o |
o |
o |
o |
|
Trademark |
|
|
|
|
|
|
Databases |
|
|
|
o |
|
II. THE RISKS OF UNDERMINING A RIGHT IN LIGHT OF THE USE MADE OF THE LINK
|
Types of links / Types of violations |
Multiple |
Concealed source
|
Autonomous exploitation |
|
Unfair trade practices |
|
● |
● |
|
Reproduction right |
|
|
|
|
Public communication right |
|
|
o |
|
Moral right |
|
o |
|
|
Trademark |
|
|
|
|
Databases |
o |
|
o |
* Page or web page: HTML document accessible on the Web with its own address. A web site is generally composed of several web pages.
** File: files of various natures (word, pdf, image, sound, video, software…) which can be downloaded or executed, other than a web page.
The two charts can be superimposed, thereby permitting one to view an accumulation of probabilities.
Reading of the charts:
> A simple link:
The link which is spun to the page presenting an internet site is neutral. Its existence in itself does not entail any particular departure from the presumed freedom to link.
However, because it permits the "association" of different sites, one can consider that, in certain cases, the very existence of the hypertext link could constitute a problem for the author's moral rights with respect to the integrity of his site (when the site is considered as a work).
An undermining of moral rights could come about however only due to the existence of facts related to the establishment of the link: for example the particular nature of the linking site which proves to be an undermining factor for the linked site's image, in particular when the presentation of the link leads the visitor to believe that the two sites cooperate, or a clearly displayed refusal of certain links.
> the deep link
By allowing the direct pointing to a site's internal pages, this link technique may diminish neutrality as far as certain rights are concerned: the party directed toward the linked work will have more difficulty identifying its source. Therefore, this link technique can, depending on the case and the facts related to the establishment of the link:
1.- cause confusion in the public’s mind between the linking site and the linked site (unfair trade practices);
2.- undermine the integrity (a moral right) of the work for which the author may have planned a linear consultation mode, i.e. the systematic use of the site’s front door
3.- undermine the right to the respect of the paternity (a moral right) of the linked work in cases, for example, in which the internal pages make no reference to their author or in which the URL is not sufficiently explicit for tracing it.
Furthermore, the deep link can still undermine:
- the public communication right: it can be considered that the linker begins to commit an act of offering to the public when he points his links in the direction of one or several files which can be downloaded or executed (word processing, sound, graphic, video or software files) contained inside a site or a web page. Indeed, by permitting the surfer to consult or download a resource outside his site or his source page, one could consider that the link established deters it from the exploitation mode initially planned by the owner of the rights, and consists, in this case, in making it available to the public;
- the law governing databases: the deep link can indeed permit the re-use of data contained in a site. However, rights will be undermined only if the re-use concerns the entire base, a qualitatively or quantitatively substantial portion thereof, or obviously exceeds the conditions of the normal use of the database.
> Transclusion
The techniques of “transclusion” or “inclusion via a hypertext link” which we know at present (in line linking and framing) lead to the presentation of a page or an element of this page (sound, graphic, video…) within a window or page of the linking site, or to the automatic execution of the sound or audiovisual files.
In itself, this technique can have a three-fold effect:
1.– of putting forth as one's own the property of others, thereby running the risk of committing an unfair trading practice and of undermining the respect of the paternity (a moral right) of the linked work, if the source and the author are not indicated;
2.- of creating the impression that the making available to the public of the linked works is the doing of the linking site. By undertaking transclusion, the author of the link deliberately puts himself in the situation of he who was the origin of the work's public communication and thereby may infringe upon the foundation of this right. The implementation of the public communication right will depend, however, on the object included (page/file) and on its degree of inclusion. We note that the transclusion technique is often used as a means of appropriating works which are on the linked site;
3.– of altering the presentation of the work and thereby undermining the moral right concerning the integrity of the work.
> the multiplicity of links to a given site.
In the event that the linked site is qualified as a database, the multiplicity or repetition of the links to the same database may be analyzed as the re-use of all or a quantitatively substantial portion thereof, acts which may be prohibited by the producer of the database.
> Source concealment
The fact that the surfer attempts to conceal the source of the linked work implies a strong presumption of parasite dealings and naturally implies an undermining of the right to the respect of the paternity of the work (moral right).
> Autonomous exploitation of the hyperlink
Even in the case of a simple link, the use of a link or of a collection of links, inasmuch as it constitutes the main activity of the linking site, can easily be considered as a parasite activity failing a commercial understanding with the linked site. It will also have an influence, inasmuch as other factual evidence is provided, on the link's implementation of public communication right and, as the case may be, the laws governing databases (due to the ensuing re-use thereof).
Autonomous exploitation is determined particularly on the basis of the following criteria:
- the making of a substantial sale by the linking site, when it establishes the links;
- possible invoicing by the linking site for the consultation of the works to which it provides access through the links it establishes;
- the existence of a subsidiary relation between the linking site and the linked site(s) exploiting the protected works directly;
- the existence of a contractual relation between the linked site exploiting the protected works directly and the linking site, in particularly if it is an exclusive one.
The effects of this autonomous exploitation must be attenuated for general search engines due to the function they perform on the Web.
Corinne COSCAS, Lawyer, Bouygues Telecom;
Pierre DE LA COSTE, Melusine.org;
Antoine DROCHON, Ingenieer and Consultant, Association Des Internautes Médiateurs (ADIM), et représentant de l’association Vivre le net;
Astrid FLESCH, Lawyer, Groupement des Editeurs de services en ligne (GESTE);
Frédéric GOLDSMITH, Lawyer, Syndicat National de l'Edition Phonographique (SNEP);
Valéry GRANCHER, Webartiste, Editions du Seuil;
Magali JALADE, Lawyer, Bureau de Vérification de la Publicité (BVP);
Michèle LEMU, Association des professionnels de l'information et de la documentation (ADBS);
Jean-Christophe LE TOQUIN, Lawyer, Association des Fournisseurs d'Accès à internet (AFA);
Lore TOURAILLE, Lawyer, Syndicat National de l’Edition (SNE);
Jacques LOUVIER, Magistrat, Direction du Développement des Médias;
Christian LUPOVICI, Association des Directeurs de Bibliothèques Universitaires;
Valérie MICHEL-AMSELLEM, Conseil de la concurrence;
Christine REICHENBACH, Lawyer, Union des Annonceurs (UDA);
Cyril ROJINSKY, Lawyer;
Pierre SIRINELLI, Law Professor at the University Paris-I;
Guillaume TEISSONIERE, Lawyer;
Huber TILLIER, Lawyer, Société des Auteurs, Compositeurs et Editeurs de Musique (SACEM);
Marie-Hélène TONNELLIER, Lawyer.
Reporter : Lionel THOUMYRE, Internet Rights Forum, Lawyer.
List of People Heard or Consulted
Arnaud DIMEGLIO, Lawyer;
Eric BARBRY, Lawyer, Cabinet Bensoussan;
Guillaume TOURRES et Cyril VOISIN, Developers, Microsoft;
Isabelle CAMUS, Lawyer, Cabinet Nomos;
Stéphane KOLODZIEJCZYK, General Director, Keljob;
Thibault GEMIGNANI, Director, Cadremploi ;
Jean-Pierre BALPE, Artiste, Writer, Researcher, Département hypermédia de Paris VIII;
Cheickne KEITA, Lead surfer, Yahoo France;
Hélène LANGLOIS, Lawyer, Yahoo France;
Rémy POULLE, Programmer, Wanadoo/Voilà;
Stéphanie FOUGOU, Lawyer, Wanadoo/Voilà;
Ted NELSON, Project Professor;
Jean-Jacques GOMEZ, Magistrat;
Alain CARISTAN, Technical Director, CNED;
Valérie MICHEL-AMSELLEM, Conseil de la concurrence;
François TERRE, Professor of the University Paris II;
Guillaume TEISSONNIERE, Lawyer;
Marie-Hélène TONNELLIER, Lawyer;
Christophe CARON, Law Professor at the Univesity Paris XII;
Cédric MANARA, Law Professor, EDHEC-Nice
Xavier STRUBEL, Researcher, Institut National des Télécommunications (INT).
[1] An analogy with the notion of servitude defined in the Civil Code (Article 637 of the of Civil Code: "A servitude is a encumbrance imposed upon a possession for the use and utility of a possession belonging to another owner") i.e. in general law, could be envisaged. Indeed, if the hyperlink is looked upon as a right-of-way (or rather a right-of-view) from one site to another, the permission of the owner of the "servient tenement" or of the "dominant tenement" (Article 638 of the Civil Code: "The servitude establishes no pre-eminence of one possession over the other") would not be required.