LEGS8007 13 Copyright & Hyperlinks 20170313

LEGS8007 13  Copyright & Hyperlinks 20170313


okay so I had thought we were finished with copyright, but actually there is just one more thing we need to do. and afterthat then I thought there was another maybe one or two more things. But I think we’ll have to draw a line under the copyright today irrespective of how much we get done. So what we’re going to look at today is the idea of “communication to the public”. One of the things a copyright holder is allowed to do, is allowed to decide who is entitled to communicate their work to the public. This came up as a result of the Napster puzzle. So Napster and peer-to-peer services like it never did any copying themselves nor do they ever have in their possession any of the files that were being copied. They merely put people in touch with other who went to the swap. So John and Paul were swapping files. OK Napster introduced them to each other but it didn’t actually do any of the copying. It never had sight of the files that were copied, typically in Napster’s case music, and the files didn’t even travel on Napster’s network or anything like that. These two people just did a swap themselves. So it’s as if two people walk into a pub and they swap files, the barman has nothing to do with it. This is the argument Napster was making and so this idea posed a challenge really to copyright as we understood it because it prohibited the copying. But if you didn’t copy well how could you be infringing copyright? And so we developed this idea of communicating something to the public. This connects up then with [publishing models people have] the business models for publishing. So lots of online content providers and newspapers in particular make their money from advertising. So you go to the Irish Times and there’s a big ad up the top. Typically the Irish Times wouldn’t make money unless you click on the ad. So you click on the ad and then the Irish Times will get a tiny amount of money. In some scenarios maybe this big huge ad, maybe for something that big, you get to charge just for the fact that people see it. They don’t even have to click on it. So like traditional newspapers be advertising is a big deal and newspapers in particular get lots of visitors directly to the website. So I go to the Irish Times and look up the news and if there’s something I’m interested in I might click on it or I might not. The headlines might be enough for me. But we have these news aggregators that link to stories directly from their service and this poses a problem. This kind of wrecks the business model for newspapers. So you know on an iPhone if you swipe left you the news. There might be three or four stories and then you can go straight to that story. And similarly you can go to something like Google News news.google.com or .ie and it will give you a list of the headlines. And so there’s lots of sites like this. In terms of entertainment news there are a few sites, some of the some of the biggest sites in the world are sites that do just that and nothing more. So the latest celebrity news, you go to the website you see all the latest news for the celebs and then you can click on it and be taken to a particular news story from particular source. And the problem is that those people interfere with business model a bit. Because if you can go directly to a story on the Irish Times that you’re interested in, well you might not see this big huge ad on the front door. Like if you could go even to a regular newspaper, if you could bypass everything and only see the page you are interested in you’d miss out on a lot of advertising. The same is true on line. So it disrupts the business model for newspapers a bit. Google News, for example, will have links to stories on new sites. So you might go Google News, you might see the Top 10 stories, or you might have told Google particularly what you’re interested in. You’re particularly interested in sport and you might see the sports stuff first, whatever. So many people in the newspaper business feel like this direct linking to their content is costing them money. And the problem is that it’s not at all clear how copyright law can help them. Some feel that if you’re linking to my stories then you should be giving money and then other people will be like but yeah it’s just a link to your story they’re not copying anything. I mean obviously if I took stuff from the Irish Times and put it on my blog and people came to my blog and saw my ads instead and I got money for it that’s obvious copyright infringement. That’s a no-brainer. But if I just link to a story on the Irish Times that that’s a trickier one. So a case just like this came up in 1997 which if you think about it an Internet terms is very early, a very long time ago now. The Shetland Times published new stories on the web. So the newspaper that had a website The Shetland News website was a portal but it provided links directly to the Shetland Times stories. So instead of going to ShetlandTimes.co.uk (I guess) and seeing the news and clicking on the stoies, you could go to Shetland-News.co.uk, see the headlines and click on any story you wanted and be taken to the Shetland Times website So there was no copying whatsover. It’s hard to imagine that one of the most significant cases about this is to do with some pokey island off Scotland. So the Shetland time soon and was granted an interdict which is Scottish law for an injunction so the chef and x was able to stop the shuttle news from doing this and we never actually got an answer from the courts because they settled so they came to an agreement and the case was dropped and if you go to what is now the successor to the chefs and news we leavin see little sign you know these stories are listed here in agreement with the Shetland but still doing the same thing but they’ve come to some sort of a deal this pose is the really desire question does providing a link to a work online constitute infringement know the computer personally then the computer scientists premyer remaining is that primarily is like you know hell no of course not how can a link to something constitute a copyright infringement there’s no copying there’s no you know you can’t possibly be but of course I can see how something like master is connected with infringement in some way until how where do you draw would you draw the line okay know if you look at the wipo copyright treaty it’s a bit here about an Austin authors of literary and artistic work shall enjoy exclusive rights and authorizing any communication of the public of their works by wire or wireless means including making available to the public of their works in such a way that members of the public may access these from a place and time individuals and by them this access these was to deal with streaming services if you’re streaming a movie online let’s say from a website that you know what is not authorized really to be doing that streaming isn’t really costing either you could argue well there’s no copyright infringement because there’s no copy at any one time the person doing the streaming watching the show for watching the movie okay they might have like 10 seconds of the movie in their buffer or any one time but they could argue they don’t actually have a copy so there’s no copyright infringement and so this and stuff about to access these works they’ll put in there to take to capture streaming services in there so if you can access the work without copying it that’s something that the author has a right to prohibit without permission and then there’s this communication to the public so we decided who our legislators that an author has an exclusive rights to authorize any communication to the public of their works and that seemed to make sense but then it got caught up with things like television and hyperlinks so we want we wanted to capture the master type scenario but it’s possible that we cost too many things in the net so on this an EU directive here again we’re talking about communication to the public so the question then came up is providing a link on a web page is that at communication to the public again for me I I don’t understand why you as ever in issues like of course not how can it possibly be a communications problem but and other people definitely thought this was a question it’s worth thinking now about what happens when you’re viewing a web page so the user will click on a link or perhaps type in a URL or in this case you’re interested in checking on a link and then the network will route that request for the HTML file to the web server somewhere so if I click on a link on google news then take me out at the link is to a story on the Irish Times website my browser sends off request to the area times web server for the story on whatever CIT has great in the course or something okay the web server will locate that file and send it back to my browser now you notice in both of these situations the communications between my browser here and the web server and the web server back to my browser now it turns out images are quite interesting because images do not get embedded directly in HTML files we need on like a web page writing class need on that you it’s not like say a word document where you can embed an image in a word document and then when you copy the word document the image comes with an HTML file all you have is a link to an image so if there any images in the webpage they’ll be coded as links and the browser will have to go off and request the images from the web server and the images will come back and then the browser will lay out the page according to specifications in the HTML but what’s important is it in all of those instances the communication is between my browser and the web server and then back and the person that gave me the link has no part in that in that transaction okay so that technical detail is important so once the user clicks or enter the URL the communication is between the users browser and the web server and there’s no am there’s no one else involved in that the plight of the link has no further role which again it kind of also the same not true love Napster nasa says this person here has a song he preferred to share to you what’s he gonna do if you like some Jews me so that’s the problem no there are different kinds of links actually and I think it’s important to analyze this problem based on the category of leaks okay so I could have a news aggregator or i could just even provide just the link so i could say look here is an interesting story but whatever and that could provide a link directly to various times website so that’s the link in its simplest form do you think a link like that would constitute a copyright infringement so the Irish Times will accept is a literary work there are times is authorized say you know who can communicate back to the public if I say here’s an interesting story and I provide a hyperlink that if you click and it takes you there and anybody have a problem with that I mean it’s hard to see how you could have a problem with that if we did have a problem with that if that constituted copyright infringement well that’s grand we could just have to shut down the internet and roll back the whole thing so certainly as a society that’s not something we’re prepared to do we’re not prepared to undo the whole internet and insist for examples that’s the only way to read a story on the arrows Times website is to go through the front door now actually there are technical solutions there is times could if it really really wanted to insist on that but the way the internet works at the moment and you can just link directly to something and you take someone there so certainly a simple link is hard to see how that could be a copyright infringement what then about a link was like a sniffing so let’s say I provide on my island times website a link to the earth science web story on the earth Times website and I copy the headline word for word is that okay do you think it’s okay should it be okay well it’s it’s a tougher one I mean is a headline that short were there protection will have only copied the headline doll I mean but it’s a small part and it is a small part of the doctor the articles certainly if you have a link to somewhere it’s reasonable to explain to the user what they might get us a click on the link now should if I’m putting a link from my Ireland’s chimes website to the Irish Times website I mean should I take government pledges fast broadband for all by end of decade and should I should I kind of rewrite that in my own words and maybe change the headline and that’s that’s arguable certainly copying and pasting a headline short and all as it is could could you could stretch that being an infringement but it is a tiny tiny portion and also like you know government side is fast broadband for all the end of the decade I mean how many ways can you even rephrase that you know you know arsenal wins treaty Mills I mean how many ways are you going to say so that’s the tougher one what about if we added a bit more text what if we took like the headline in the first paragraph starting to get easier isn’t this if you’re taking a little snippet of the story you could also i mean even with this you could argue that we’re just seeing that much no i don’t need to go click in the area times website actually i know the government is going to you know i know the content of that story pretty much are not interested in the details so even from that much there may be very time for the last out on my eyeballs seen the ads no and this is certainly bit if here where we include the snippet from the story now I don’t want to get too too technical but it’s possible to put in a web page a window or a frame and have the content of that frame the different web page so you can make a web page that has like a window in it which inside that is another entirely different web page and that’s called embedded content or it could be a where the frame is the technical term and interesting there is that in this scenario the communication is still only between the users browser and the web server so basically this artist chimes web page has a layout to the box in it and as part of the code for that it says no the content for this box is available at irish times / today / whatever / blablabla for HTML so the user’s browser goes away take that content from the area times website and embed this in the page from Arden’s china not technically very easy to do the question is would it constitutes an infringement what do you think yeah but you’re not you’re not copying anything ever you’re just providing a link or not only the person we’d it might not know i mean the price of is this whole part of the whole point is like here it might not be obvious at all that’s coming from somewhere else they’re just something they just go to iron and shines and upcoming to other stuff and that’s all very interesting and some of it has come from the Ireland’s chimes web server but the business end of it has come from the Irish Times web server and it’s all appearing on the one browser window exactly exactly and if somebody else is entirely but you’ve never copied it yeah I mean I think it’s as far as you can go without copying the question is is providing a link to content online infringing what I mean what’s the difference between this and this where do you draw the line how do you draw the line to be tricky I mean I think this is certainly taking the piss but legally how how do you do that how do you how do you draw the line and that’s what’s that’s what’s tricky images are particularly troublesome that’s why I a minute ago went to the trouble of explaining to you that images to come with the page because I could for example include in my webpage and image from your website just by providing the link to the image on your web server and so my web page now has your image but I can do that without ever copying the image I just send the web browser off to get your image whenever I need it and that’s the problem because we have entire industry is based on the idea that if you want to have an image on a web page you have to pay the photographer 02 the image was the image the finish is online anybody can link to it embedded in their web page and they’ve never actually copied this all the daughter told your web browser where to go get it I’m sure you can complain if someone comes along with the web browser and look the driven to just put it on the web like what’s your problem so that’s even even more troublesome and then of course there’s the far end of the case where you provide a link to an illegal copy of something so might we accept that this is something that should be solved a link to an illegal copy of something would be part of the infringement would be we stretch that much if I provide a link on my website to a copy of a song that someone else put online illegally should I be cut off on the infringement proceedings I didn’t put the song online I just have a link to it I mean some people would think yes but at the same time you have the difficulty if I provide a link to something that’s on the wares and freely available on the web how am I to know whether it’s fairly clear enough what if and the copyright owner gave permission initially and then took it back I mean does the link i post when it was legitness and then taken away is that links then the common fringing of all these problems now so one one way we could address this is look at what the link is doing so what’s the function of the link so you could look at like the economic impact of what’s happening is it taking away advertising is it taking away resources unfairly and that’s that’s one approach that hasn’t really happened though the courts haven’t looked at what’s going on and they’ve tried to find a way to and just say links are good or bad nicci the video is available injury yeah I believe the pinto beans are near image the answer is good place the video yeah was it goes back to the liability of YouTube and libraries intermediaries it’s not available in your region and then you provide every szon and then someone makes it available in your region yeah actually that’s exactly where we end up okay and so we will come to that so and those the case ticketmaster versus tickets com tickets calm had a website these are all the cool events coming up and then if you want to buy a ticket it sent you straight to ticketmaster to buy tickets so you can say a ticket master you know these are the concerts in carts this month and ladder that’s one of my tickets you’d get from here ticketmaster was unhappy with that because i guess it wanted people to come through the front door of ticketmaster and be exposed to what as it might have but the court said that hyper linking does not itself involves a violation of the copyright act since no copying is involved so in the u.s. it’s fairly clear look if you’re not copying you’re not infringing copyright but there was another case in texas i think where someone was linking directly to streaming audio so i think I’m SS ex had a life had a live audio streaming thing right and this other competing website links directly to their street and it was no copying again but the court said that SFX will likely suffer immediate and irreparable harm when the new racing season begins if Davis is not enjoying from posting links so here it is focus on the iron that could be caused but it was it was tricky interesting to judge do the analogy between linking media to unauthorized retransmission of football games so the idea that if you rebroadcast something that’s broadcast that’s an infringement but the question is is that a good fit for hyperlinking so there was a case in the UK of a website that allows you to go on to the web and watch what was on the telly I guess this was before the TV companies cop down to the fact that that something my peoples might want to do and the website was saying but sure we’re only showing people like you were like it’s not now like an save sky sports or something this is free-to-air television anyway and they were only showing you what you could see if you happen to have a television in your office and tearing it up so it’s free to air now as opposed to you know paid subscription TV what the court adjusted bu said no that is communication to the public so you can’t do that so what was happening was and I TV TV catch-up was had it had you know because getting the transmissions from the telly and then using the internet to send them on steep so was the similar case then we’re a hotel was allowing the customers of the hotel in their hotel rooms to watch those on the TV and it has some setup where it was an rebroadcasting the TV channels into people’s hotel rooms whatever technical solution that was probably wasn’t terribly sophisticated a dog and the court found that that was communication to the public irrespective of the fact that the public would it had access to that anyway and also i think the hotel site used the sense that’s only like one person’s room that’s not the public so wasn’t clear before this for the communication to the public meant like rebroadcasting in the sense that like putting it on the web to the whole world see assume that even rebroadcasting television in the hotel was the communication to the public and that was kind of a surprising enough decision there was a crowd in the u.s. called Ariel that tried to do something similar to TV catch-up what the way they were getting around it was instead of having one Ariel and streaming the channels to individual users they gave each individual user their own area and they’re saying the people are just renting the aerials from us and where we transmitting to their bread with bad their web browser what their aerial obsessives and they had like a room full of you know thousands of Ariel’s and this went all the way to the Supreme Court and and they lost so they tried to get around it that way and then the question then becomes is television actually a good analogy for a hyperlink and I think the the answer is no and if you look at what TV catch-up was doing is taking the broadcasts off the air and then it’s transmitting those through their web servers across the Internet to the individual people but in a hyperlink when you provide a hyperlink to someone like if I say to you you know Irish I’m com if once you click on that it’s nothing to do with me anymore and the communication is just between the website and the readers browser and the person providing the link has no has no hand actor or part in that so the word some cases then based on this and again it’s all about the newspapers and their business model being being tinkered with so there was a search engine that index the news of the day and you it provided you you know what what’s happening and you could click and go to the individual sources and this is a German case and the court found that that was not a communication to the public and did not infringe copyright there was a Napster type case in Norway cause Napster with an appt today no I don’t know if was the original Napster or a different one but the Supreme Court has Norway held that posting hyperlinks was not making things available to the public so the most important case then on this in Europe is the Ascension case and this was a case of deep links where a news website was linking directly to stories in a newspaper and the journalists food and the screen is the Swedish Court as the courts of justice of the EU did that can’t produce the communication to the public the course came back and with a surprising answer which we’ll see in a second was a very similar case the best water case this is particularly cheeky I thought so then a company made a promotional video for its products i think was like water filters and was all about like how monkey your water is when you really need a water filter and a competitor of theirs embedded their youtube video about oh my god your waters growth on their website and their argument was this is a youtube video online because you know if it’s a youtube video we can put on our web page and although dream is providing a link to youtube videos it’s not like they downloaded youtube video and copy this and put it on their website they just in their web page provided a link to the YouTube video and the Spence in case the Court of Justice decide is that providing a link to website does constitute an active communication to the public which I think was just wrong I I think the technical point of view I I don’t see how you can justify that but then has its proviso but it’s not a new public so it’s okay so providing a link to content online is a communication to the public but it’s okay provided it’s a public that would have had access to it anyway which I think only makes things worse for me so that’s that’s the position in law so linking is legal and even when a work appears in such a way as to give the impression that it is appearing on the site on which that link is found whereas in fact it comes from another site that means embedding someone else’s stuff in your webpage avoided you don’t copy it is also legal which you know is a tricky one but there you go so you can do that so you can put stuff online incorporate it into your web page and that’s that’s okay so linking it and transclusion with the term they used for we call that embedding that’s that’s legal also if you think about it then all that casts the television case is in a whole new life we define making television broadcasts available to people who could have watched them anyway okay I’ll accept this communication to the public but I could argue but it’s not a new public what if you’re being very strict with your interpretation one though because it wasn’t available online before some of the speed there’s a theoretical group of people who have internet connections but not televisions so there are a new public but certainly the logic that people like TV catch-up or using wearers we’re only showing this to people who have legal access to it anyway seems to be consistent with with that okay and the court also asked if Sweden could vary the law to require some sort of payment from the news aggregators and the court says that no the internal market would be adversely affected by that the directive would be undermined so there isn’t much scope for national differences because its directive was and put in place to try and harmonize the law across the so there’s some issues then that come over 2,000 so if i put a photograph online and i make it available on the web anybody now can incorporate that picture into their web page and i get diddly-squat III don’t get to say was you’re using my picture in your web page if they just provide a link to the image I have online then there’s nothing I can do about that people might decide that they require you to log in to their website to solve that problem so if you require for example like if you have pictures on flickr or someplace and you only allow people to see mr. logged in but that could be way around that problem for example we might see lots of single login snow so some interesting things happened so that’s the law then but there’s also an some market forces at play so German newspapers decided to set to Google you’re ruining our business all these links you’re providing with google news directly to am our custom you know directly to people the deep linking we want you to pay us like we said no we’re not paying and so the newspaper said right you’re not allowed link to our stuff anymore I’m google said fine so we’re not gonna have a big court case over it we will stop linking to your new stories we just shut down google news for jerry and they did that and watch thing happened no one’s other stuff traffic just dropped their ad revenue dropped and so the newspapers in Germany came back to Google said ok Google with sorry you don’t have to pay us like please link to our stuff in Spain the government saw what happened in Germany and so they made it that the newspapers couldn’t opt-in that they have to be paid for their deep linking and so Google News shut down in Spain and hasn’t come back on and now the newspapers are crossed with the government for not allowing them to opt in to some sort of the scheme with Google so basically if you want Google to pay if you want to charge google for linking to your stuff you might or might not have a perfectly good legal arguments for that but you know who wants to be invisible to Google who wants to say to Google please ignore me that’s not going to work either so if you go to a noose at Google that I eat you’ll see links to Irish new sites if you go to Google sequel to news that Google is you see note in Spanish things there is no more google news and this year he this man was the EU commissioner predicted to the currently in society he stepped down recently I think he’s gone back to Germany to re-engage with German politics is anybody read German what’s the word has garbage as garden will it translate you can translate as a fee so he thinks is saying when he said when Google refers to and worked with intellectual property from the EU these can protect these values or perhaps tickets value with Lester poor translation and ask Google to pay a fee is both not impose a fee so this idea that Google should pay for linking to content that seems to have them from some currency but certainly the law is a tricky I think what the did in the sentence case was a bit of such not terribly satisfaction it will be with our song

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