The concept of linking is fundamental to the Internet. Linking occurs when an image or reference on a website is selected, causing that document to be automatically displayed by the selecting party. By taking advantage of the link, the party selecting does not need to enter a URL or other address and obtains rapid access to the linked information.
There are several types of links depending on whether the link is within a specific site or to another site or activated or automatic. A link is automatic when a code is embedded in the web page, which instructs the browser, upon obtaining access to the first site, to automatically download a file from the second site. The information from the second site is presented with no further action by the user.
A link is user-activated when the user clicks the mouse button over the hyperlink to obtain access to the information from the second site. If the linked files are on another server, the user’s browser directly connects to the second server. The user-activated link may be made to the home page or a sub-page in the second site, in which case the end-user may have to take further action to access a particular file at that site. The link may also be made directly to a specific file, in which case the user will receive the content represented by that file with no further action.
The law concerning linking in Canada and whether it can constitute copyright infringement or trademark infringement in an appropriate case is unsettled. While using an automatic link can give rise to liability for copyright infringement, the law is unsettled concerning other types of links. There have been several decisions of the Court of Justice for the EU concerning liability for linking in a copyright context, but it is not clear whether the approach taken in these cases would be adopted in Canada.
Framing is a technique whereby information from another website can be viewed while remaining on the initial website. A computer screen is divided into multiple windows by building frames typically consisting of graphics on which the other website is displayed.
The addition of the “making available right” under the Copyright Act has changed the law concerning framing. Liability can arise from making a work protected by copyright available to the public by telecommunication in a way that allows a member of the public to have access to it.
If you have questions, please contact me at mckeown@gsnh.com.
Goldman Sloan Nash & Haber LLP 480 University Avenue, Suite 1600 Toronto, Ontario M5G 1V2 Direct Line: (416) 597-3371 Fax: (416) 597-3370 Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.