June 15, 2021

Analysis of IP Issues in Cyberspace: A Case Study of Deep Linking

Intellectual Property, better known by the abbreviation IP ,can be defined simply to include all intangible unique assets that a certain individual conjures up in their mind.[1] the conception of Intellectual property was driven by the impulse to nurture an environment wherein innovation and new ideas thrive by giving them the same attributes and protections that are associated with tangible physical property. Now that the world wide web dominates the scene its very easy to violate the rights of Intellectual property owners.

During the infancy of Intellectual Property laws, there were no specific provisions to protect these intangible assets from the web since it was non existent at that time, it was impossible for the drafters to comprehend that the web would permeate the entire world and make it extremely easy for malefactors to get their hands on Intellectual property of others.[2] Intellectual Property of various individuals have become accessible to the majority of the population through deep linking, which explained in simple terms generally means a link or a hyperlink that directs to a specific content of any website past its homepage.[3]

Deep linking gained prominence around the same time the popular search engines such as Google and Yahoo were emerging that provided access to websites past their homepages. The term deep linking was often confused with the term Hot linking which was essentially links that enabled the user to download files from unsuspecting third parties violating their Intellectual Property rights, fanning the fire surrounding the dispute related to the accessibility of the population to copyrighted intellectual property through cyberspace.

Cyberspace has greatly altered the operation of Intellectual Property laws, since at the time of its inception cyberspace did not exist and in this era where e-commerce involving intangible assets forms an important part of the economy, cyberspace has enabled malefactors to commit transgressions easily. Intangible assets are impossible to measure and quantify and intellectual property occupies the majority of these assets that are circulated through the cyberspace so they need to be regulated by Intellectual Property law.[4] In the case of University of London V University of Tutorial Press, Peterson J. stated that ‘What is worth copying is prima facie worth protecting’.[5]

To nurture an environment that encourages creativity and innovation by making financial protection available for intellectual property so that the resultant benefits of such innovations and creativity are available.[6] With the advancement in technology and communication it has become extremely efficient to reproduce and disseminate copyrighted material to the masses which hosts a variety of issues for the copyright holders of this content. Emergence of cyberspace and digitization technology all forms of intellectual property ranging from written works to audio, images and may other things can be digitized and amalgamated to create an infinite number of distinct works which is new issue that has arisen which did not exist before.

The prevailing law allows replication of works available for private or personal use and since the technology for reproduction of content has improved significantly in cyberspace it has become extremely effortless to create perfect carbon copies of existing works which has made it very difficult for copyright holders to exercise their rights and exert control over the unauthorized reproduction of their original works. Physical reproduction of focuses mainly on the reproduction of original works and charging for these physical copies, whereas in cyberspace copyrighted content is monetized by limiting its access and dissemination and charging a premium for its use. Older versions of photocopying technology only allowed the person to make copies reduced in quality and required great amount of effort and time, but with the advent of Internet one can effortlessly make copies of original works without any reduction in quality. This results in disarray in markets that compose of softwares, music, movies and anything that is available on cyberspace.

Deep linking is at the core of the internet experience today and is very essential to surf the net, because without it a user might have to enter the URL or the Uniform Resource locator themselves which might prove to be very tedious, instead the users prefer deep linking which directly gives them access to content past the homepage of many websites just through the click of a button. Deep linking also exposes intellectual property on the cyberspace to many violations against it, but placing restraints on deep linking would significantly hamper the expediency of information exchange that the internet provides. Deep linking has also resulted in several legal disputes when these links are disseminated without the consent of unsuspecting 3rd parties.[7]

In the case of Shetland times, Ltd. v Wills 1997[8], the Scottish paper, Shetland News included ad verbum reproductions of headlines that its competitor, the Shetland Times had posted and this took users directly to content bypassing the homepage of the Times and thus violating their Intellectual Property rights. In the above mentioned case the courts passed an interim edict stating that the plaintiffs had a prima facie case and the actions of the defendant’s website caused an infringment of a legal provision that gave protection to Intellectual Property of “cable programs”. The courts also stressed on the fact that the Times was well within in its rights to exert control over its content and webpage access and the actions of the defendant resulted in a prospective loss of revenue for the plaintiff.[9]

In order to effectively determine all the issues that are born because of the creation of cyberspace and all the issues that will further arise in the future with the advancement of technology, continuous research should take place in the fields of law, public policy and economic impacts. Integral changes need to be introduced in the existing intellectual property laws with reference to the continuous changes taking place in cyberspace. Since Internet has connected the masses around the globe being an omniscient entity, it has also resulted in the ‘death of distance’[10] around the world in various countries which has created numerous issues for all entities existing in cyberspace, in order to protect the interests of these entities the existing provisions should be revamped to suit the requirements of the rapidly changing cyberspace scenario.

References

[1] Will Kenton, Intellectual Property , Investopedia ,(June 13, 2020) , https://www.investopedia.com/terms/i/intellectualproperty.asp

[2]N S Nappinai, Cyber Laws Part II: A guide for victims of cyber crime, The Economic Times ,(Nov 3, 2017),https://economictimes.indiatimes.com/tech/internet/do-you-know-how-to-report-a-cyber-crime-heres-a-guide-for-victims/articleshow/61464084.cms?from=mdr

[3] Chris Maddern, A Brief History of Deep Linking , Tech Crunch ,(Jun 12, 2015) ,https://techcrunch.com/2015/06/12/a-brief-history-of-deep-linking

[4] William Daley, WIPO Conference on Electronic Commerce and Intellectual Property , WIPO ,( Sep 1999), http://ecommerce.wipo.int/conference/papers/daley.html

[5] Cornish & Llewelyn, Intellectual Property: Patents, Copyright Trademarks and Allied Rights, (5th ed. Sweet & Maxwell, London, 2003)

[6] Bowie E Norman, Digital Rights and Wrongs: Intellectual Property in Information Age, Business and Society Review 77–96 (110:1)

[7] Nicos L. Tsilas, Minimizing Potential Liability Associated with Linking and Framing on the World Wide Web, (8 COMMLAW CONSPECTUS 85, 87 n.22.)

[8] Shetland Times, Ltd. v. Wills, [1997] F.S.R. 604, 606 (Outer House, Oct. 24, 1996) (Westlaw UK)

[9] Shetland Times, Ltd. v. Wills [1997], supra note.8

[10] Cairncross Frances, Death Of Distance, Harvard Business Review Publications, (1997)


Author Details: Madhav Mantri (KIIT School of Law)

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