LINKING AND FRAMING
“THE UNAUTHORISED USE OF A TRADEMARK IN A FRAME ON A WEBSITE IS LIKELY TO CREATE CONFUSION OR A FALSE IMPRESSION OF ASSOCIATION BETWEEN THE TRADEMARK OWNER AND THE WEBSITE HOST”
another location either within the same website or on another website. Situations may arise where a ‘link provider’ provides a hyperlink to another location, which in turn hosts the infringing material, thereby facilitating access to that material.
What is framing?
Framing is a concept in HTML development where a single website may be divided into various frames capable of operating independently of each other. In the advertising world, framing is a practice similar to linking with the exception that the framed link operates upon the host’s website itself rather than redirecting the user to the linked website. Framing helps the user to view the contents of the framed website without having to navigate away from the host website.
Te crime scene: a murder has taken place. Te accused is arrested. Te weapon retrieved is a gun. Te gun is licensed in John’s name. John has been ‘linked’ to the crime scene. However, had the gun been found in John’s possession, John would have been ‘framed’ in the crime scene.
In this article we will discuss the concepts of ‘linking’ and ‘framing’, as well as the liability for linking or framing infringing content, not in the setting of a crime scene but in the context of infringement over the Internet.
What is linking?
Linking represents one of the most characteristic features of the Internet, enabling users to click on a specially coded text to navigate to a webpage or element of a webpage associated with that link’s code. Websites typically contain links which when clicked upon redirect the users to
www.worldipreview.com
Tis article seeks to examine the following proposition: would a website host be held liable for hosting a frame or providing a link that infringes the rights of a third party? Te scope of liability of such intermediaries under trademark law and copyright law is examined.
In the first decision of its kind, the Delhi High Court in Super Cassettes Industries Ltd v MySpace and Anr, has shed light on the law pertaining to intermediary liability in India for hosting copyright-infringing material. Te decision discusses two critical aspects of intermediary liability: liability under the Copyright Act, 1957 and the availability of a safe harbour to intermediaries for making available copyright- infringing content.
Intermediary liability under copyright law can be traced under two heads.
Liability for permitting use of ‘a place’ for communication of a work
Section 51(a)(ii) of the Copyright Act, 1957 imputes liability for copyright infringement on any person who without authorisation permits, for profit, any place to be used for the communication of a copyrighted work to the public. Te Delhi High Court has interpreted the term ‘any place’ as including a webspace or an intangible space on the Internet. Terefore, any entity that allows its webspace to be used for communicating to the public copyrighted content is potentially liable for copyright infringement. It is noteworthy that such liability can be imputed only where such person has knowledge or reason to believe that communication of such work would amount to copyright infringement.
Te Delhi High Court decision holds that the fact that a website provides safeguards for filtering copyright-infringing content implies that the website host has reason to believe that the content hosted by it may infringe copyright, thereby bringing him within the ambit of this section. Apart from the presence of filters, actual or constructive knowledge may be imputed on a website host on the basis of editorial control and notice by the copyright owner.
A link provider who merely hosts a hyperlink to the location hosting the infringing material is not responsible for communicating the work to the public either directly or through any means of display or diffusion. Accordingly, rights holders may find it difficult to impute liability to a link.
A website that contains a frame displaying copyright-infringing work effectively communicates the infringing work to the public, thereby attracting liability under Section 51(a)(ii) as explained above. Terefore, knowledge or reason to believe on behalf of the website host that a frame on its website may contain infringing material may make the website host liable for infringement under the Copyright Act, 1957. However, there may be instances where the hosting website has no knowledge of the contents or effective control over the contents being framed. Tis is a situation that typically arises with social networking websites where the control over the posting of content lies solely with the user.
Liability for ‘authorising infringement’
Liability for hosting copyright-infringing material may also be imputed on intermediaries for authorising an infringing act. Under Section 14 of the Copyright Act, the authorisation of an infringing act is a separate act of infringement from the act which is itself authorised and a person is liable for having authorised an infringement.
Trademarks Brands and the Internet Volume 1, Issue 1 57
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