Dialogue: Creative rewards secure in cyberspace

By CAROLINE BEAUMONT AND MIKE CRONIN*

The vast amount of information loaded on the web - and its daily, almost exponential growth rate - means that the parameters around "copyright works" are being increasingly scrutinised and tested.

And, as copyright lawyers continually struggle to apply existing laws against this backdrop of technological advancement, there has been an explosion in internet-related actions as copyright owners seek to assert their rights.

International laws are subject to minor variations but the fundamental theme of copyright law in New Zealand and overseas is the same.

Any original work involving some form of creativity gives the owner an exclusive right to control who uses that effort.

And almost any written work (even that recorded in a programming language such as Java or C++) can qualify as a creative work.

Copyright protection encompasses literature, journalistic articles and musical compositions. Also covered are computer programs, multimedia digital creations and even postings by discussion groups.

But does displaying material on the internet or a smart device (such as a WAP phone) amount to making a copy of it?

The simple answer is yes. Just as it is easy to identify a photocopy of an original work as a copy, so is it safe to assume that any computerised operation of a work involves some reproduction of the original version.

And even if the material is available on a website, without charge to the web surfer, a publisher of that material who has not received appropriate authorisation can still be sued for breach of copyright.

The very recent Tasini and New York Times case is a reminder of the issues. The US Supreme Court was asked to decide whether electronic reproduction of a newspaper constituted a revision of the original print version.

It did, with the court ruling that unless Tasini and his fellow freelance journalists had consented to this electronic formatting of their works, such reproduction was a copyright infringement.

As a rule of thumb, the copyright owner will need to authorise the display or availability of original material on the internet.

Anything less can amount to copyright piracy - with the remedies for the owner including damages, penalties and reimbursement - and, in the Tasini case, potentially large damages and rectification costs in cleansing electronic databases and seeking consents from contributors.

Perhaps less obvious instances of potential copyright infringement are linking, framing, spidering and meta-tagging - common methods of automatically transporting the surfer from one page or website to a different internet location through an icon or hyperlink text.

Although few court cases have been decided on the topic, it seems generally accepted that a pure text link is unlikely to constitute a direct copyright infringement. The link itself, displayed on the linking site, probably cannot be a copyright work if it is just a word or short phrase.

But infringement can occur where the link comprises logos, trademarks, images or extensive text that may be protected by copyright.

The same principle applies to meta-tags, or hidden text within the website code. Unauthorised copyright material in the HTML code can be a direct infringement.

Deep linking, a derivative of linking, transports the surfer to a page within a website, skipping the home page. The term received notoriety in the Microsoft-Ticketmaster case in the US.

A Microsoft-owned site linked to a page within the Ticketmaster site, bypassing Ticketmaster's home page, and the company sued Microsoft for linking without authorisation.

It also claimed it was being deprived of advertising revenue based on the number of hits on the Ticketmaster home page.

The matter was settled before the court was required to rule.

A related issue is that of framing, where one website contains a hyperlink to another and causes the linked site to be viewed inside a frame, while the original site - albeit only a portion - remains present on the outside of the frame.

As well as raising the same issues as the linking debate, this also raises the question of whether the site's altered appearance constitutes an unauthorised derivative work. This question is another one yet to be settled by the courts.

Spidering involves using web spiders - active pieces of programmed software - to crawl through websites and gather factual information. This generally does not constitute breach of copyright, provided that the information is retrievable and not in a copyrightable form.

But it can be argued that contributory infringement occurs where a linking site, in posting a link, connects to a site that publishes infringing material. A surfer clicks on a link (albeit a non-infringing one) and is transported to a linked site containing material that infringes copyright of another party, for example, by offering free downloads of pirate software.

Those running the linking site will find it hard to argue that they did not actively encourage surfers to transport to the infringing site, as the legal test in this situation turns on the phrase "induces, causes or materially contributes" to the infringing conduct of another.

Because in most cases obtaining consent is not practical, website developers and owners must "think smart" in order to marginalise their risk. Examples include:

* Establishing and verifying the source of materials supplied (ie, have the materials been created by the supplier and is the supplier willing to give an indemnity in respect of any breach of intellectual property.

* Obtaining the supplier-author's consent to display that supplier's material in any media.

* Checking industry-related internet sites to see whether the "look and feel" of your site and/or material looks remarkably like another already in existence.

* Avoiding deep links and frames.

* Avoiding the use of trademarks and other copyright material in meta-tags.

* Using text links instead of logos and other copyright icons to represent the link and checking before allowing software to be downloaded via the site.

* Mike Cronin is a partner and Caroline Beaumont a senior solicitor in Russell McVeagh's technology practice group.