I, for one, while writing, picture the intended audience and the beneficiaries (wishful thinking). This article talks about the legality of hyperlinks, taking a leap from trademarks we jump to the next but a slightly tangled trajectory of Intellectual property Law. Copyrights are about ideas, they say ideas are bullet proof but with all my complacent indignation I beg to differ. Copyrights are as fragile as the fringes on a newly embroidered suit, one won’t even realize while infringing them.
Above is delineated a very broad argument, to narrow it down let’s put things into perspective. In today’s highly advanced technological era every information is available on the net (for free, almost everything). To acquire such information we access the secondary sources on the web for our convenience.
Of late this shiny new concept of hyperlinking is gaining much fanfare being used widespreadly ad nauseam to make information transmission just a click away. While writing a blogpost the author, to give more credibility to its information, leaves a note saying further reading available here. The term “here” is a clickable link which leads you to a third party website and you can access those documents there.
Hyperlinks could be classified into three types for the purposes of this article:
Hyperlink: A clickable term landing the user to a different domain
Deep link: A deep link shifts the traffic from its origin website to a specific content of a third party website. Google flights land you directly to ticket booking page of the selected website. It’s not an infringement but the act of bypassing all the steps on the third party website and landing them directly to the payment page google has led to the loss of revenue which that said ticket booking website would have earned by the advertisements. The website cannot argue copyright infringement here as it would fall under the fair dealings exception under section 52(1) of the Copyrights Act. However, they can argue on the common law grounds that the deep link is causing them economic losses, they might not be able to prove a legal injury but avoiding litigation and the related costs is really desirable.
Hyperlinks to an infringing content: Hyperlinks per se do not constitute copyrights infringement but the particular hyperlink might lead to a page which is infringing some copyright. This would be considered as facilitation of copyright infringement and the author can be held liable for the same. Having delineated the issues let’s look at the precautions to not end up in bad waters while pursuing your hobbies.
It should be fair dealing of the said copyright material. Fair dealing in India is an exhaustive concept enshrined in the section 52 of the copyrights Act. Opposite to the Fair use concept in USA where everything is judged on the pivot of fair use or fairness Indian jurisprudence mostly remains open to wide interpretation concept, courtesy of the magnanimous American jurisprudence.
A best practice task undertaken by most of the cloud storage sharing websites give a notice to the effect that you are now leaving the website and entering a third party webpage. The idea is not to warn the user about the consequences of entering the said website at their own risk but to save themselves some trouble.
The absence of a notice might make the user believe he/she is performing the transactions on the same webpage which falls under unfair trade practices.
Furthermore, such belief won’t render the user an opportunity to read the terms and conditions of the third party webpage (I know :p, but just for the sake of it) and could lead to unfair loss to the user.
It is considered a precautionary practice among blog writers to acknowledge the authors and their credentials while hyperlinking them. It should give a notice to the user about the third party content. Failure to give such a notice might amount to unfair trade practices since the user would be under confusion as to which website they are using. This amounts to misleading conduct under unfair trade practices. Moreover if such a notice is not given the user won’t have the opportunity to view the terms and conditions of the homepage, this might result in a claim that you are authorizing copyright infringement.
It is fine to provide hyperlink to a link but the said link should not contain any infringing material itself.
It is considered a best practice to acknowledge the website owner. For ex: if the website is an online journal, you should write an acknowledgement stating that more info is available on the journal available on this website run by this organization.