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JILT 1998 (2) - Connolly & Cameron

Fair Dealing in Webbed Links of Shetland Yarns

Shetland Times Ltd. v. Dr. Jonathan Wills and Another

James P. Connolly   Scott Cameron
The Robert Gordon University    
lasjpc@merkland.rgu.ac.uk  

Contents
Abstract
1. Introduction
2. Circumstances
3. Copyright, Designs & Patents Act 1988
4. Internet Technology
  4.1 Is a Web Page an Item in a 'Cable Programme Service'?
  4.2 Is the Internet Interactive?
  4.3 Is the Information 'Sent'?
  4.4 Were the Reproduced Headlines Protected Cable Programmes?
    4.4.1 Original Literary Work/ Typographical Arrangement?
    4.4.2 Infringement of Copyright of Original Literary Work?
    4.4.3 Literary Works
    4.4.4 Fair Dealing
    4.4.5 Public Interest
    4.4.6 Implied Licence to Copy
5. Conclusion
  References
  Links

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Abstract

The authors discuss the issues that arose in the above case at interim interdict stage and which were not fully canvassed at a full hearing as a settlement was reached. The article explores the particular issues of whether the judge at first instance was correct in holding that there was a prima facie case that the Internet is a 'cable programme service' under the Copyright Designs and Patents Act 1988 and the technological issues that were not fully aired, including the necessity of copying in order to browse a web site and the concept of links to other web sites as in themselves attracting copyright protection themselves. Reference is made to other analogous cases concerning the use of link technology on the World Wide Web which have either been settled or are current in other jurisdictions, and to the current proposal for an EU Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society. The authors call for legislation to specifically deal with the issue of copyright in links.

Keywords: Internet, copyright, Copyright Designs and Patents Act 1988, hypertext links, cable programmes, European law, Information Society.


This is a Refereed Article published on 30 June 1998.

Citation: Connolly J P et al, 'Fair Dealing in Webbed Links of Shetland Yarns', 1998 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/copright/98_2conn/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_2/connolly/>.


1. Introduction

On 11th November 1997 The Shetland Times issued a publisher's statement that their interim interdict dispute with The Shetland News had settled without going to proof and included the terms of settlement in the form of a Joint Minute by Counsel on their web site. The settlement allowed the Defenders to link to The Shetland Times' web site by using The Shetland Times' own headlines, provided that an acknowledgement is given for each headline as being 'A Shetland Times Story'; featured The Shetland Times' masthead logo adjacent to any such headline; and that the hypertext links only be to The Shetland Times' online headline page. All relatively innocuous and in keeping with so-called 'netiquette' (Kelly, 1996), but the problem with this case is that there was an interim judgement where, on a balance of convenience, it was held prima facie arguable that the Internet was a cable broadcast system for the purposes of copyright law, and that the reproduction of certain headlines from The Shetland Times' web site as links to those stories could be a breach of copyright. Whilst this decision has to be seen in perspective (an interim one granted by one judge, on the balance of convenience, based on limited argument by counsel), it was nevertheless given by a Court of Session judge and commented upon around the world. It remains as an example of what the courts might do, at least at an interim stage. One can only speculate as to whether the door-of-the-court settlement agreement suggests that Counsel for The Shetland Times did not expect to succeed at a full hearing, particularly as each side bore their own legal expenses.

There have been several other cases that have involved disputes about linking on the web since (see The Link Controversy Page), and to date all but one has settled - Ticketmaster Corporation v. Microsoft Corporation currently in the United States District Court Central District of California[1]. This latter case is being disputed on the basis of dilution of trademark; deceptively and misleadingly representing a connection or association with Ticketmaster; unfair competition; false and misleading statements and unfair business practices under California common law. The Ticketmaster case has no bearing on copyright law at all, and it is the authors' view that the copyright question has still not been put to rest, in the UK at least, which is the reason for this article[2].

2. Circumstances

In The Shetland Times case, simply by using their browser, The Shetland News accessed The Shetland Times' web site in the normal way. The Shetland News then copied and stored parts of it on their own web page, by using a very simple set of instructions, and put a selection of these headlines on The Shetland News' web page.

The screen display of some of The Shetland Times' headlines (i.e. the actual words used) but not their typographical arrangement (the look of the headlines on the screen), were reproduced. The Shetland Times' headlines on The Shetland News' web site were configured as hypertext links. Such links are a defining feature of html. Web site programs enable a viewer of the web site to simply connect by the click of a mouse to a completely different web page, which may be held on a master computer operated by a service provider anywhere in the world. It is important to note that The Shetland Times did not have their entire web pages copied by The Shetland News. The hypertext links connected directly to The Shetland Times' own web pages on their server. By using such links the first page of the Internet edition of The Shetland Times, which did not then but which was planned to contain advertising, was by-passed, and the appropriate stories accessed directly.

3. Copyright, Designs & Patents Act 1988

Copyright is governed by statute in the UK. In terms of s.171(2) of the Copyright, Designs and Patents Act 1988 [referred to as CDPA hereafter]'...no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Part [Part I] or some other enactment in that behalf.' Part II of CDPA confers rights independent of any copyright on performers and persons having recording rights in relation to a performance (CDPA s. 180(4)). However, CDPA could not have anticipated the World Wide Web and its many applications such as the 'multi-media' transmission of a rock concert, or the leaving of condolences on the Buckingham Palace web site. For example, breach of a performer's rights by a live broadcast, or inclusion in a cable programme service, is proscribed by CDPA - subject to a private and domestic use exemption (CDPA s.182(1)) - but Internet communications are a technology that succeeds the legislation. Its growth rate is unprecedented in the history of communication technologies; the Internet now reaches some 60 million users in 160 countries, doubling each year (Pradier 1997). It becomes crucial if CDPA is to apply to the Internet at all, whether the existing definitions of 'broadcast' and 'cable programme' (and related expressions) relevant to parts I & II of CDPA can stretch to the technology of the Internet. This interpretation of statutes can be hard to predict, but the object of all interpretation is to discover the intention of Parliament.

'Intention of the legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there had been an omission to enact it' (Salomon v A. Salomon & Co. Ltd 1897).

4. Internet Technology

As Lord Hamilton stated:

'No detailed technical information was put before me in relation to the electronic mechanisms involved' and '...The resolution of the [above] issues may in the end turn on technical material not available to me at the hearing on interim interdict' (Shetland Times Case 1996 p.163-C ante). On a balance of convenience he found 'a prima facie case that by the incorporation by the defenders in their web site of the headlines provided at the pursuers' web site constitutes an infringement of section 20 of the Act by the inclusion in a cable programme service of protected cable programmes' (Shetland Times Case 1996 p. 16 -D ante).

Our analysis of the technical aspects of the decision concerns four points. Firstly, does the sending or receiving of material via an Internet web page make it a 'cable programme service' under s.7 of CDPA? If so, is the service interactive, and hence excepted? Secondly, is the information accessed on the Internet 'sent' by the provider, or is it 'retrieved on demand' by the party accessing? Thirdly, were the words of the headlines which were reproduced a cable programme, due to their appearing on a web page authored by The Shetland Times. Lastly, is the common-place creation of Internet links always copyright infringement?

The pursuers argued that each of their own web pages was a cable programme within the meaning of s.7 of CDPA. Section 7(1) defines a 'cable programme' as meaning 'any item included in a cable programme service'. Further it defines 'cable programme service' as 'a service which consists wholly or mainly in sending visual images, sounds or other information by means of a telecommunications system, otherwise than by wireless telegraphy, for reception-

a) at two or more places (whether for simultaneous reception or at different times in response to requests by different users), or
b) for presentation to members of the public, and which is not, or so far as it is not, excepted by or under the following provisions of this section.'

4.1 Is a Web Page an Item in a 'Cable Programme Service'?

The Internet's history, and how it operates, was discussed fully in the American case of American Civil Liberties Union v Reno (1996) where it was found that:

'The Internet is not a physical and tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks.'

Cable programme service transmissions involve the sending of signals along designated material paths (Phillips & Firth p. 164) and section 7(1) of CDPA makes a distinction with wireless telegraphy transmissions which are not included in the definition of a cable programme service. When a person accesses information via the Internet it is not accessed via a designated, material path. How the information is delivered is variable, dependent on the amount of information and the geographical location of the server for the site being accessed.

There are many methods of communication over the Internet, such as one-to-one messaging, or real-time communication, but the most common is remote information retrieval via the World Wide Web. Documents can exist in different computers all over the Internet, and may be read as text or seen as images or heard as sounds, or combinations of all three. In a sense nobody owns the Internet, it is a network of computers which themselves may be owned. Each piece of material has an address known as a Unique Resource Locator [URL], analogous to a telephone number, and to access this information the user is required to enter this URL in his net browser program and wait for the information to be accessed. The two most common methods of accessing information on the Internet are either via a computer that is linked to a network which has access to the Internet, or by use of a personal computer which is connected to a modem attached to a telephone line. However with the advance in mobile phone technology it is now possible to access the Internet on a cellular phone system i.e. wireless. The Internet is a vast entity, made up of millions of operators, service providers, computers and documents. It has no centralised storage or control point. Most importantly it has no single communication channel. Indeed, part of its original conception was to create the ability to withstand the collapse of communication technology in the event of a military strike. Once information has been requested by the user, the data that is processed could travel any number of routes: telephone lines, satellite links or mobile phone signals. The information is sent by a 'packet switching' communication system of communication protocols which allow individual messages to be subdivided into smaller packets and then travel independently to the destination (A.C.L.U. v. Reno, 1996 II Findings of Fact, paragraphs 8-9). These packets, which may have travelled independently from different sites are then reassembled by the receiving computer. As the Internet works through a series of connections between different computers until the information eventually reaches the desired destination, the packets will often travel along the same 'path'. However it is important to note that if computers on this 'path' are too busy or are overloaded with information, the material being accessed on the Internet will be automatically re-routed via a computer which is less busy. The most obvious example of this is if a document is coming through particularly slowly, a user can 'click' the reload icon on his computer's toolbar. The information will then start coming through a second time, perhaps faster, but equally, perhaps slower. This is because it will often travel by a different route. Therefore there is no 'designated material path' to an Internet transmission, and although information requested will arrive as 'one' document, normally in a stilted fashion, that same information may be sent by a number of different packets. Because it is not necessarily being sent through a 'cable', on a 'single designated route', web technology can not easily be equated with a cable programme service. If any guidance can be taken from the A.C.L.U. case, the Federal Appeal Court of Philadelphia made a distinction between the Internet and a cable system:

'Once a provider posts its contents on the Internet, it cannot prevent that content entering any community. Unlike the newspaper, broadcast station, or cable system, Internet technology necessarily gives a speaker a potential worldwide audience' (II Findings of Fact, paragraph 86). Also, 'in any event, the evidence of our findings of fact based thereon show that the Internet communication, while unique is more akin to telephone communication.' ( III Conclusions of Law, Section C Applicable Standard of Review ).

The technological advance of cable systems, as distinct from existing television broadcasting, lies in bandwidth. Developments in coaxial cable of meshed copper wires means that cable systems can carry a bandwidth of very broad frequency range. A television channel requires 8 MHz of bandwidth to carry the signals that make up its moving picture, a cable system may have a frequency range of 350 Mhz, to transmit about 25 channels in the UK.(Gibbons, 1984). The newer optical fibre, unlike coaxial cable, which transmits signals by electrical impulses, uses bursts of light. Whereas relatively thick coaxial cable can carry at most 24 simultaneous telephone conversations, two thin filaments of glass can carry 12,000 and now each fibre cable can carry between 500 and 750 channels (Black, 1996). Because of its cost it is mainly used as the main trunk line of a cable system, and not the connection to the subscriber (Veljanovski and Bishop,1983 pp. 28-29). Cable broadcasting involves the physical connection to a television receiver, which will not normally have a processing unit that will enable it to talk back to the cable provider, The lack of interactivity means that a subscriber to a cable service can normally only receive programmes at the times they are being broadcast by the provider. On the Internet however, a browser can download a web page whenever he wants, from any computer in the world. A cable programme service can carry great amounts of information, including computer programs, which could in any event be transmitted on existing analogue telephone lines, whereas broadcast quality television, or video, could not be. This technological limitation can be cured by data compression technology, use of fibre optic cables, or upgrading telephone wires to transfer digital information, such as ISDN (Integrated Services Digital Network) which can transmit 64,000 bits per second as opposed to the normal 4,800 bits per second.

The Internet is currently a world wide phenomenon because it does not need the advanced telecommunications systems that television does, but convergence in technology is fast approaching. So called 'real time video' is a relatively inexpensive technology which can convey images at two frames per second (as opposed to the familiar 25 frames per second) over the net, and is much used by purveyors of erotica from private bedrooms around the world. This raises the question of whether licensing of cable programmes under the Cable and Broadcasting Act 1984 comes into play or could ever be effective on the Internet. The convergence of technology for 'voice telephony' over the Internet has recently prompted the European Commission to issue a notice in these respects (97/C 140/06). The notice provides that voice communication over the Internet could only be considered voice telephony if commercially provided, to the public, to or from public switched network termination points on the fixed telephony network, and involves direct transport and switching of speech in real time. The Commission noted that existing technology, including compression techniques, could not be regarded as a real time service. In this respect the Commission also notes that there could be the introduction of equipment which could allow: 'Internet access via the cable television networks. Such cable modems are already on sale in the United States. This would allow widespread Internet voice telephony with data never travelling via the PSTN.' The Commission seem therefore to recognise and maintain the distinction between the Internet and the cable television networks. More recently, on 17 December 1997, the Commission has asked for the separation between telecom and cable activities to prevent 'former telecommunication monopolies...mutating into supermonopolies.' (Brussels, 17 December 1997. IP/97/1139). The Commission further notes that: 'The restrictions on the provision of cable TV capacity via telecommunication networks are also significant as they can create an asymmetrical regulatory framework (our italics) which again constrains optimal market development over time. However, given that the technology allowing such provision is just emerging, the constraints are not yet heavily felt in practice in most Member States.'

In our view Internet technology is wholly unique in its world wide scope and lack of 'ownership,' and quite distinct in its technology to achieve this scope. It cannot be equated with a cable programme service, although the latter can subsume the former. Distinctiveness appears to have been the view also of the US Federal Appeals Court in A.C.L.U. v. Reno, (1996) and the view taken in the report by M. Pradier (1997) which states:

'The Internet therefore is radically different from traditional broadcasting. It also differs radically from a traditional telecommunication service.'

If we are wrong in seeking to distinguish the two, perhaps due to the convergence of telecommunications technology, then there is the next question.

4.2 Is the Internet Interactive?

Section 7(2)(a) of CDPA provides that so called interactive services are excepted from the definition of a 'cable programme service'.

'A service or part of a service of which it is an essential feature that...there will or may be sent from each place of reception...information (other than signals for the operation or control of the service) for reception by the person providing the service or other persons receiving it'.

The defenders argued that as it was possible to leave messages with the pursuers at their web site (comments and suggestions were invited) then this was an interactive aspect of the communication, and thus excepted from the s.7 provisions for cable programme services under CDPA. Lord Hamilton held that it was plainly arguable that the exception did not apply as the mail facility was not an essential element nor primary function of the service, and that it was also a severable function (Shetland Times Case p 163-C). With respect to Lord Hamilton, it is difficult to see how the mail function could be severable without re-writing The Shetland Times' web page. It could be argued that whilst the mail facility had been chosen by The Shetland Times as a part of its web page that it was essential; in any case there is nothing in s.7(2)(a) that provides for an analysis of severable functions. What is clear is that a cable television programme will normally be a one way street from provider to customer with no possibilities of messages going the other way without a microprocessor at the receiving end. Whatever else, a web site read on a computer screen has a simple interactive capacity when one computer is 'speaking' to another. The fact is that both a cable television programme and a web page could be interactive if the relevant parties wished it so. However, the authors accept that, at interim interdict stage at least, the question of what was essential in a free Internet 'newspaper' was arguable.

4.3 Is the Information 'Sent'?

A cable programme service is 'a service which consists wholly or mainly in sending visual images, sounds or other information...'. Even if it was accepted that web pages formed a cable programme service, is a web page 'sent' to the accessing computer? Lord Hamilton was not persuaded that the information was not being sent: 'although in a sense the information, it seems, passively awaits access being had to it by callers, that does not...preclude the notion that the information...is conveyed to and received by the caller. If that is so, the process may arguably be said to involve the sending of that information (Shetland Times Case p 163-A)'. Perhaps a better analogy is that the page is being 'fetched' (Shetland Times Case, Commentary p.164) by the accessor of the web page. If you send a friend a letter, then you presumably know you are sending it. You write it, you post it or deliver it, and you have reason to believe that person will receive it. It is the same for a fax, or an e-mail, or a cable television provider who sends television signals along a cable for a user to purchase and watch. This is often not the case when accessing a web page. When a person creates a web page, it is left on the Internet by that person so that other people can access it on demand. The person who actually maintains the web page may never know that it has been accessed or who has accessed. It is true that in some cases the web page operator knows who has accessed and how often, this facility may be contained in the program for the web page, but this is not necessarily the case with all web pages. As this is not the case then it is hard to understand that the information being 'sent' is the best analogy. If you write a letter to a friend, but you leave the letter on a desk, and if the person to whom the letter is addressed then walks by and takes it without you knowing then it is hardly being 'sent' to the addressee. In any event the web page does not physically move from point to point. Nor is a signal sent. The information on a web page is said to be 'downloaded.' The correct meaning of 'downloading' a computer was recently held to be that given in the Concise Oxford Dictionary of Current English (9th Edition, 1995) which was the transfer of data from one storage system or device to another (R v City of London Magistrates' Court ex p. Green, 1997). Perhaps 'transfer' is not sufficient to convey the sense of what happens as it suggests exchange. In fact the web page program is copied and read by the browser. Perhaps a better analogy is that the owner of a page of information leaves it face down on a photocopier for the whole world to take copies as they please. Another analogy might be with a world wide broadcast but retrievable on demand. There was no debate at interim interdict stage as to whether a web page might be a 'broadcast relayed by means of a telecommunications system' (s.6(5) CDPA), as opposed to a cable programme service. It might be just as arguable that a web page could be a broadcast under s.6(1) CDPA where 'broadcast' means a transmission by wireless telegraphy of visual images, sounds or other information. As previously discussed a web page can be accessed over a mobile phone. Perhaps no analogy properly conveys the extent, speed, versatility and communication capacity of a web page and the Internet. It is our view that the Internet is sui generis (of its own type) and should sensibly be seen as such, but that the issue of 'sending' was the least impressive of those available to the defenders.

4.4 Were the Reproduced Headlines Protected Cable Programmes?

What is clear is that the headlines appeared on The Shetland Times' web page as legible parts of that page. They had also been created by means of an underlying computer program. It was those small parts of computer program that were copied and used as links. The question is, were the parts of the computer program comprising the Times' web page themselves cable programmes. This would be to say that each line of code, no matter how mundane or functional would be a cable programme. Whilst the authors accept that s7(1) of the CDPA defines a cable programme as any item included in a cable programme service, it appears to us that there should be a distinction between a line of computer code -a literary work- and a part of a recognisable television programme. Whilst it might still be argued that a literary work can be an 'item' in a cable programme service, it is submitted by the authors that an argument that the lines of computer code were de minimis and, in any event, were not cable programmes, might have been advanced by the defenders. Instead matters turned to the literary merit of the headlines.

4.4.1 Original Literary Work/ Typographical Arrangement?

It is easy to see how the law should apply for hard copies of The Shetland Times and The Shetland News. If by purchasing one newspaper you would also be able to read in it news stories precisely copied from the other, that would most likely be a breach of copyright. The criteria to apply would be whether the material that was copied amounted to an original literary work (CDPA s. 1(1)(a)), or more simply, a typographical arrangement of a published edition (CDPA s. 1(1)(c)). This latter criteria is nowhere defined in the Act, but is thought to cover '...basically the way the printed page is set out.' (Dworkin G. & Taylor R.D. 1990, p30). The Shetland Times on the Internet was a new beast - a 'net newspaper'. To what extent does the Act extend copyright to this new beast? Do the copyright criteria for a hard copy also apply to the 'net newspaper': can it be a literary work, or a published edition of a typographical arrangement?

First and foremost, a web page is a computer program. A web page is a software program, written in a high level computer language (normally, hypertext mark up language - html), known as the source code, to be read by another software program loaded onto a computer. Ultimately, a web site can be broken down further into a binary code, known as object code, which is a series of 1s and 0s. It is this rendering into digital form and processing on a micro-processor which is at the heart of the information technology revolution. As such, a computer program in object code which was expressed in writing, or a source code similarly expressed, had been argued to satisfy copyright criteria as literary works, if original. The matter is largely beyond doubt with the CDPA 1988 s. 3(1)(a) which provides that a literary work means any work, other than a dramatic or musical work, which is written, spoken or sung, and includes a table or compilation, and a computer program. Although a computer program is nowhere defined in CDPA, writing is defined in s.178 for Part I of CDPA as including any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded. Therefore, the object and source code, however stored, on The Shetland News's web page would be in writing, and be a literary work. We need not concern ourselves with whether the 'net newspaper' also constituted a typographical arrangement of a published edition, as the links on The Shetland News site did not reproduce the look of The Shetland Times' pages. It was the words themselves which were reproduced.

4.4.2 Infringement of Copyright of Original Literary Work?

Several points then arise in relation to the literary work problem. Firstly, was copyright in the hard copy newsprint edition infringed by reproducing the words used in certain headlines; secondly, was copyright in the electronic version infringed by reproducing the words of certain headlines as hypertext links? In either case, that would be so if hard copy and electronic version of the headlines were literary works; the whole or substantial parts of which were copied; and the qualifications for copyright protection were met. Lastly, might there be a defence: for example;

(a) was a new literary work- a compilation- created;
(b) is creating a hypertext link fair dealing;
(c) is reproducing news headlines itself fair dealing;
(d) was copying legitimised in the public interest
(e) might producing a freely accessible web page itself be conduct that amounts to an implied licence to copy some or all of its content, or at least acquiescence for the purposes of making hypertext links?

As for hard and electronic versions, copying in terms of s.17 is defined as reproducing the work in any material form and includes storing in any medium by electronic means. The fact of copying then is indisputable. There is perhaps the wider question of whether accessing a web page itself necessarily involves making an infringing copy, however transient (CDPA s17(6)). This of course would run a cyber coach and horses through the Internet. Worryingly, the CDPA does not specifically deal with this huge anomaly. S.56 of CDPA does allow a purchaser of a computer program to impliedly make copies, but purchase is not the essence of free access to a web site. Indeed the terms of the interim interdict against The Shetland News prevents 'the defenders, their employees, agents or anyone acting on their behalf or with their authority from 1) storing in any medium by electronic means or otherwise copying or 2) including in any service operated by the defender on the Internet any headline, text or photographs from any edition of The Shetland Times newspaper or the Pursuer's Internet web site <http://www.Shetland-Times.co.uk/>. This could be regarded as interdicting access to The Shetland Times web site at all, as access will inevitably involve copying by some means, however temporary by the viewer; indeed it may also involve copying by the service provider who may 'cache' the file and transmit it directly to the user where a web page is busy. In a sense if copying is outlawed on the Internet it ceases to exist. This fundamental problem is not considered at all in The Shetland Times case, nor as we shall see capable of being agreed by the World Intellectual Property Organisation in December 1996. However Article 5 of the 'Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society' (1997) provides:

'Temporary acts of reproduction referred to in Article 2 which are an integral part of a technological process for the sole purpose of enabling use to be made of a work or other subject matter, and having no independent economic significance, shall be exempted from the right set out in Article 2' [ the reproduction right].

This would deal with the caching problem if enacted.

4.4.3 Literary Works

Firstly, which is the literary work; the words comprising the headlines which appear on screen , and/or the program code (object or source), the operation of which causes the words to appear on screen? A literary work requires to be recorded `in writing or otherwise' (CDPA s.3(2)). We have already seen the wide definition of writing, and there can be little doubt that both the hard copy and the electronic copy of The Shetland Times are recorded writings for the purposes of the CDPA. So too would the relevant program codes.

However, mere recording of a writing is not enough to constitute a literary work. Even if considerable effort, skill and labour is involved in selecting a particular word, for example, the word 'Exxon' for a business entity, copyright law will not protect its use as a literary work (Exxon Corpn v. Exxon Insurance Consultants International Ltd, 1982). There is the de minimis principle to consider. Accordingly the advertising phrase 'Beauty is a social necessity, not a luxury' was not infringed by a similar advertising phrase: 'A youthful appearance is a social necessity' (Sinnanide v. La Maison Kosmeo, 1928). Neither was the name of the fictional detective 'Kojak' (Tavener Routledge Ltd v.Trexapalm Ltd, 1977) copyrightable; nor the title of the song 'The Man who Broke the Bank at Monte Carlo' (Francis Day & Hunter Ltd v. Twentieth Century Fox Corporation Ltd, 1940). A diary for lawyers called 'The Lawyers Diary' similarly did not attract copyright (Rose v. Information Services Ltd,1987). However in an interlocutory hearing there was held to be an arguable case of infringement by the use by one newspaper of the logo of another newspaper (The Sun) in its advertisements (News Group Newspapers Ltd v. Mirror Group Newspapers (1986) Ltd, 1988). The Shetland Times case did not however involve the use of a logo. Indeed the settlement expressly provided that their logo was to be used for any future links.

The concept of originality in a literary work may cross over with the notion of considerable effort or labour only - the so called sweat of the brow test. But this test would not of itself be enough to justify copyright, particularly in the United States where a telephone directory did not qualify (Feist Publications Inc v. Rural Telephone Service Co Inc, 1991). In Britain however, there is a tradition that relatively banal matters such as football coupons (Ladbroke (Football) Ltd v. William Hill (Football) Ltd, 1964), and television programme listings in the TV Times (Independent Television Publications v. Time Out Ltd, 1984)[3] are copyrightable. The European Court of Justice has also referred to the essential function of an intellectual property right which, in the case of copyright, is to protect the moral rights in the work and ensure a reward for creative effort (Warner Bros v. Christiansen, 1988). The question might then legitimately arise as to what creative effort was involved in a selection of headlines. We would submit that none of the headlines should attract copyright with particular reference to the 'Man who broke The Bank at Mount Carlo' principle (Francis Day & Hunter Ltd v. Twentieth Century Fox Corporation Ltd 1940). His Lordship thought that it was arguable that 'eight or so words designedly put together for the purpose of imparting information' as a headline could be protected from infringement. That may be so in some cases but appears to us to be stretching matters for the four headlines in this case: 'Bid to save centre after council funding cock up'; 'Forum to monitor west oil effect on fishing'; 'Name change is put on ice', and 'Go ahead granted'. Neither would we suggest that listing these headlines could amount to a new literary work as a compilation.

4.4.4 Fair Dealing

Even if the headlines themselves were deemed to be copyrightable, there remains the defence of fair dealing. The phrase itself is not defined in CDPA but s. 30(2) provides that :

'Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3) ) it is accompanied by a sufficient acknowledgement.' And sub-section (3) provides that: 'no acknowledgement is required in connection with the reporting of current events by means of a ... broadcast or cable programme.'

Most surprisingly, the fair dealing point does not appear to have been argued at the interim interdict stage. This would appear to us to be a crucial oversight, as the whole effect of putting a hypertext link to The Shetland Times pages was that a browser might go to those pages directly. The text of The Shetland Times stories did not appear on The Shetland News' page - merely certain headlines: this appears to us to be insubstantial copying of less than the full work (CDPA s.16(3)(a)), and in any case, fair dealing with acknowledgement in connection with a news story. The settlement in this case centred around acknowledgement, but no acknowledgement should be necessary in the context of a cable broadcast under s. 30(3) in any case: the settlement simply ignores this issue. In effect by having argued that their web page was a cable programme, it should have followed that no acknowledgement was necessary anyway. In any event on reading the linked page The Shetland Times' URL (its address) would be displayed on the user's browser. Over and above, each Shetland Times web page actually had a banner across the top clearly identifying it as such. It is possible that some valid objection to linking might be taken on the basis of 'passing-off', but that was never the point here. It might be argued that the regular listing of headlines went beyond fair dealing, and that once a linked page was read, the browser could easily use the 'back' button to return to The Shetland News' web page, thereby avoiding The Shetland Times' first page and any adverts it may carry. However the 'web surfer' was just as easily one click of a mouse away from The Shetland Times' home page. Fairness would probably be a question of extent and the report does not provide enough detail to demonstrate that fairness was forfeited by excessive daily use. On this fair dealing analysis there would be no need to become concerned with the technology of the Internet.

It has been suggested (Bainbridge, 1996 p.151) that an interlocutory injunction [equivalent to an interim interdict] will not normally be granted if the defendant is going to raise the defence of fair dealing and has at least an arguable case. This was questioned in BBC v British Satellite Broadcasting Ltd (1990) in a case concerning excerpts from broadcasts of World Cup football matches made by the BBC which BSB intended to include in its broadcasts. The BBC's application for an interlocutory injunction was refused.

4.4.5 Public Interest

Sitting rather uneasily with notions of copyright, there is the rather nebulous defence of public interest in some cases where there are issues of freedom of speech, and it has been held that interlocutory injunctions should not be used to restrain free speech (Kennard v. Lewis, 1983). It is true that such cases normally arise where there is some aspect of political controversy, as, for example in Kennard v. Lewis, 1983, where politicised pamphlets could be copied to comment upon, but it seems that would be stretching matters for the relatively banal news stories in this case.

4.4.6 Implied Licence to Copy

The loss of potential advertising revenue appeared to Lord Hamilton to be significant, although it is by no means clear that this would necessarily happen, and there had been no loss up to the date of the hearing. His Lordship also stated that it was 'fundamental to the setting up by the pursuers of their web site that access to their material should be gained by accessing their web (sic) directly.' This point appears to misunderstand the essence of web technology, as any web page can usually be linked to any other. It could be argued that the Pursuers should have understood this, and by placing materials on a web site had granted an implied license even to copy them, as they can only be read by copying. This is a potentially enormous point in Internet copyright law that does not directly arise in this case, except for the links themselves. In the way that knitting patterns carry with them the implied right to reproduce the pattern for domestic purposes (Roberts v. Candiware Ltd, 1980), it might be argued that links are part and parcel of the Internet. Copyright in a web page may also be secondarily infringed under a stretching of s.24(2) of CDPA where it states:

'Copyright in a work is infringed by a person who without the licence of the copyright owner transmits the work by means of a telecommunications system (otherwise than by broadcasting or inclusion in a cable program service), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere'.

If this section applied then in theory every service provider could be in secondary infringement merely by carrying a web page without a licence or implied licence, believing that it could be copied, or indeed, that links to it might be made. Again, this section could have devastating effect on the Internet, depending on a definition of what the Internet is.

If an implied licence to copy anything on the Internet is going too far, as it is submitted it must reasonably be, in the more restricted question of making links English law recognises a defence to a breach of a licence agreement where it would be unconscionable for the plaintiff to be permitted to deny that which they had allowed or encouraged the defendant to assume to their detriment (Film Investors Overseas Services Sa v. Home Video Channel Ltd. 1996).

There still remains the question of more common place links on the Internet where there is no news aspect. The question of original literary work arises again, as does whether a substantial part of a work is copied in creating a hypertext link. But the matter is further complicated if a web page is decided as being a broadcast or a cable broadcast. S. 72 of CDPA provides that the showing or playing in public of a broadcast or cable programme to an audience who have not paid for admission to the place where the broadcast or programme is to be seen or heard does not infringe copyright in the broadcast or cable programme. Again, these definitions would have to be stretched for Internet technology. Could it be said that a freely downloadable web page is 'showing in public to an audience'. The audience would probably be a world wide collection of persons who are downloading for free, at different times, normally in private. This issue is addressed in Article 3 of the European Commission Proposal (COM (97) 628 final) as follows:

'Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of originals and copies of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.'

This would cover on demand services, but does not specifically deal with the interactive aspect of the Internet.

5.Conclusion

It is the view of the authors that the technology of the Internet is sui generis and does not fit easily onto the existing copyright structure. Also there is a conflicting ideology on the Internet which originally evolved in Universities for the free exchange of information to the present day, highly commercialised marketing and sales purposes, which exist side by side. When a part of web technology as fundamental as a hypertext link is construed as infringing copyright, web users groan. Where is the problem they ask. After all as a result of the links, people who may not have accessed The Shetland Times' web page could easily do so - in much the same way as if they had been told of a radio frequency, television channel or telephone number. But this suggestion was cursorily dismissed by Lord Hamilton as having no substance. It is our view that The Shetland Times case is best dealt with as one of fair dealing in any case, but if similar questions were to arise again and there was no question of news[4] being involved, it is our opinion that legislation would be needed before any balance between the idealism of the Internet and the need to protect intellectual property is found. But the Internet is a world wide affair and as recently as December 1996 in Geneva the World Intellectual Property Organisation (WIPO) under the aegis of the UN with representatives of 130 governments agreed to two treaties[5] and postponed a third. Agreement could not be reached as to new definitions of 'copying', 'private/public' and 'publishing' in the digital age, and an agreed statement adopted by the Diplomatic Conference which adopted the WIPO Treaties said that existing international rules were sufficiently wide to cover reproductions made in the digital environment[6]. The Treaties amend the 110 year old Berne Convention for the protection of Literary and Artistic Works and once ratified will need legislation. That legislation will probably come on the heels of the current EU Proposal (COM (97) 628). That Proposal provides at Article 7 that:

'Member States shall provide for adequate legal protection against any person performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information,
(b) the distribution, importation for distribution, broadcasting , communication or making available to the public, of copies of works or other subject matter protected under this Directive or [the data base directive 96/9/EC] from which electronic rights management information has been removed or altered without authority, if such person knows, or has reasonable grounds to know, that by doing so he is inducing, enabling or facilitating an infringement of any copyright or any rights related to copyright as provided by law...'

This could possibly cover linking without authority, or at least acknowledgement, on the Internet. However Article 2 does not specifically mention the Internet, although Preambular Paragraph 35 notes that 'technological development will facilitate the distribution of works, notably on networks' but again refers to broadcasts 'transmitted by wire or over the air, including by cable or satellite', which brings us back to square one. An exemption for the long established reporting of current events, with an indication of its source, is still proposed in Article 5, but otherwise a fair use exception is not referred to. The Explanatory Memorandum to the Proposal notes at Chapter 3 I. A. 3. that fair dealing is provided for in UK and Irish legislation, and is more narrowly defined in Sweden, Belgium, Germany and Greece; also that the new WIPO Treaties refrain from listing particular exceptions, but WIPO's three stage test of 'certain special cases,' which do not 'conflict with normal exploitation of the work' and 'do not unreasonably prejudice the legitimate interests of the author' are said in the Explanatory Memorandum to enable: 'Contracting Parties to carry forward into, and devise new exceptions and limitations that are appropriate in the digital environment'. It is further commented that 'certain limitations set out at Community level as well as at national level will have to be amended to be brought into line with the new WIPO Treaties also in the Community and its Member States.' The question then of fair dealing in links on the net is one which the UK Parliament will have to consider, if not under the Treaties then if the European Proposals become Directives, but currently without precise guidance from Commission. It is the authors' view that until the Internet is seen as sui generis and specifically legislated for, the links issue will continue to resurface, and The Shetland Times case will be commonly cited as an easy precedent at interim hearings.

References

Bibliography

Bainbridge D (1996) Intellectual Property Pitman Publishing.

Black, (1996) 'A human right to broadcast 'television speech?', Communications Law, Vol.1, No.1.

Dworkin G. & Taylor R.D (1990) Blackstone's Guide to the Copyright, Designs & Patents Act, Blackstone Press Ltd.

Gibbons T Cable and Broadcasting Act 1984, Scottish Current Law Statutes, Greens.

Kelly, P, (1996) 'Netiquette and Nethics' in CC/1920 The Virtual Community: Daily Life in Cyberspace, a course taught at York University, at <http://www-home.calumet.yorku.ca/pkelly/WWW/nquette.htm>.

Phillips J & Firth A, Introduction to Intellectual Property Law, Butterworths, London.

Pradier (1997), Illegal and harmful content on the Internet, Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Com (96)0487-C4-0592/96 <http://www2.echo.lu/legal/en/internet/communic.html>

Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (COM (97) 628 final), 10 December 1997.

Veljanovski and Bishop (1983) Choice by Cable, Institute of Economic Affairs, London.

Cases

A.C.L.U. v. Reno (1996) E.D.Pa. 636 <http://www.aclu.org/court/cdadec.html>

BBC v. British Satellite Broadcasting Ltd (Unreported) 29 June 1990.

Exxon Corpn v. Exxon Insurance Consultants International Ltd [1982] Ch 119, [1981] 3 All ER 241, CA.

Feist Publications Inc v. Rural Telephone Service Co Inc (1991) 113 L Ed 2d 358.

Film Investors Overseas Services Sa v. Home Video Channel Ltd ( T/A The Adult Channel) 1996 93(44) L.S.G. 30.

Francis Day & Hunter Ltd v. Twentieth Century Fox Corporation Ltd [1940] AC 112.

Independent Television Publications v. Time Out Ltd [1984] FSR 64.

Ladbroke ( Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273.

News Group Newspapers Ltd v. Mirror Group Newspapers (1986) Ltd (Unreported) The Times, 27 July 1988.

R v City of London Magistrates' Court ex p. Green, The Times, March 13, 1997, Scott-Baker, J, QBD.

Roberts v. Candiware Ltd [1980] FSR 352.

Rose v. Information Services Ltd [1987] FSR 254.

Salomon v A. Salomon & Co. Ltd. [1897] AC 22. HL.

Shetland Times Ltd. v. Dr. Jonathan Wills and Another (1996) S.C.L.R. 160.

Sinnanide v. La Maison Kosmeo (1928) 139 LT 365.

Tavener Routledge Ltd v. Trexapalm Ltd [1977] RPC 275.

Ticketmaster Corp. v. Microsoft Corp. [1997] No 97-3055 DDP.

Warner Bros v. Christiansen Case 158/86 [1988] ECR 2605.

Statutes

Copyright Designs and Patents Act 1988

Cable and Broadcasting Act 1984

Links

The Link Controversy Page at <http://www.jura.uni-tuebingen.de/bechtold/lcp.html>

Footnotes

[1] The pleadings can be found http://www.ljx.com/internet/tktmaster.html (for the complaint) and http://www.ljx.com/LJXfiles/ticketmaster/answer.html and http://www.ljx.com/LJXfiles/ticketmaster/reply.html.

[2] For an analysis of the Ticketmaster issues (and also some of the issues raised by the authors) see Stangert, Lesia A., 'The legalities of linking on the World Wide Web' (1997) Communications Law Vol.2 No.6 202.

[3] Television listings have again been considered judicially, this time by the European Court of Justice in the Magill TV Guide case RTE & ITP v Commission , Cases C-241 & 242/91 Judgement 6 April 1995. Here the refusal to license reproduction of copyrighted TV listings was an abuse of a dominant position contrary to Article 86 of the EC Treaty

[4] A similar dispute appears to have arisen between The Times (London) and a Mr. Sean Peck, see Macavinta, 'Linking a copyright violation?' Dec.11, 1997, at <http://www.news.com/News/Item/0,4,17233,00.html>

[5] WIPO Copyright Treaty (WCT) (1996) with the agreed statements of the Diplomatic Conference that adopted the Treaty - WIPO Doc 226 (E) (1997) Geneva. WIPO Performances and Phonograms Treaty (WPPT) (1996) with the agreed statements of the Diplomatic Conference that adopted the Treaty - WIPO Doc 227 (E) (1997) Geneva. Web Site <http://www.wipo.org/eng/diplconf/distrib/89dc.htm>

[6] See Agreed Statements to the WIPO Copyright Treaty concerning Article 1(4).

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