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Linking and Consent

I have a web page. I want to link to another page, can I do so without the owner's consent?

First, some technical fundamentals. Web pages are viewed by a mechanism whereby a new copy of the page arrives on the viewer's computer, and his browser software then examines and processes that new copy, by creating a third copy in his computer memory, and transmitted to the screen. At least two new copies are created. Web pages are clearly literary works, and since the creation of a copy infringes the owners copyright, the viewing of a web page, withoutmore, involves an act which is capable of being an infringing act. Copyright is just the right to prevent others making new copies of the owner's works. You cannot, in law, look at a web page without the licence (or consent) of the web page owner.

How does this affect linking? A link is an invitation, to the person browsing your page, to take a copy of somebody else's page, and therefore to do what, in the absence of permission, will be an infringement of that person's copyright.

A significant element is the ability to click on a link, and to be transported by that act to the destination page. This is not like a signpost. It is more than that, it is called a link, just and precisely because it provides a direct, almost mechanical, connection. This means that, arguably, the link is, within the Copyright Designs and Patents Act 1988, an instrument for creating copies - and therefore itself part of the act of infringement which follows.

All this, of course ignores what seems obvious - a publisher of a web page clearly knows what happens when he publishes his page. It will be downloaded and copied. He licences visitors to do this. Indeed for the vast majority of authors, links are welcome and encouraged. Many will even pay for the privilege. There is a very obviously implied licence to make the copies necessary to look at the page.

What this understanding, in turn, does not allow for is that such licences are not universal, and are not all the same. For many sites, there are pages which are private. They may be available only to subscribers, or to only a restricted group of people. There may be substantial commercial reasons behind such restrictions - and even if there aren't, the author has no obligation whatsoever to allow access other than on the terms he chooses. There is no licence to visit such pages except in accordance with the actual licence granted by the author. There can be no general assumption of a licence to view a web page.

It is sometimes said that since the technology exists to prevent somebody linking to sub-pages, if an owner does not bar such access by using that technology, he invites a direct link. This argument may carry some street cred, but it carries nil legal conviction.

You cannot, therefore make a simple assumption that you have the right to link to any and every old page.

A second issue relates to the use of frames. This site is framed. When I use a link to load a page into your browser, if that page does not sufficiently clearly identify itself, it can look to be part of my page. It can look to be an integral part of my site. This happens, for example with some statute pages. If I am not careful, one or more of several things might then happen:-

  1. The loading of the page in this way, may appear to be not fair use of the owner's page. It can vitiate the licence which the owner might otherwise grant, making my use of it a breach of his copyright.
  2. Particularly so with commercially produced pages, the framing in this way may breach an explicit term on the site as to the circumstances in which the page my be copied.
  3. If a page. 'the included page', appears within the frames of my page in such a way as to cause confusion as to the source of the page, this may amount to passing off.
  4. If the included page displays a Trade Mark, and the purpose of your page is, for example, to sell competing goods, then the display of that trade mark may be an infringing act.
  5. If the page you link to is an infringing site (perhaps by making available bootleg software for download), your link may make you liable for the content. Even worse, There is a possibility that a link to a link, and to a link, and so forth throughout the web, is just as much an infringement, as is having the infringing material on your own site. English copyright law appears to make it so.

In all, the advice is therefore as follows:

  1. Do not be put off having a links page, but know what you link to.
  2. Do visit the pages you link to, and fairly regularly. A page which six months ago was sensible and worth visiting, might now be the front door of a porn site.
  3. If you have any doubt, ask. When you ask, invite them to create a reciprocal link.
  4. Link fairly. Link to the front page of a site unless you have good reason to think a link to a sub-page is appropriate.
  5. If you do use frames on your site, consider whether links should open up a new copy of the visitor's browser so that the target site does not appear within your frames. This has the added advantage of leaving your own page open so that the visitor can come back rather more easily.

All of the above advice is, I hope, correct, but most is certainly untested, and some is controversial. Some very large law firms indeed advise that the risks of having a links page are such that you should avoid them entirely. My own view is that this is a rather pusillanimous. It suggests that the owners of the page feel themselves 'above' the web, rather than part of it. Each to his own.

To finish, a quote "Linking without permission is stealing. Period, end of story." - Mark Cuban, CEO of broadcast.com. I disagree with this, but be aware that this is how some, very wealthy and powerful, people think.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/cpuLinkConsent.shtml 170 18 October 2013