As you may know hyper-text mark up language (html) is the language of websites. It allows pages to be linked easily. In websites you often see hyper-links allowing you to jump to another site or to the Uniform Resource Locator (URL) of another webpage. Commonly the link is a highlighted word or picture. Good reasons for this may be to boost visitors to the linking website but also there have been cases whereby bogus linking sites have sought to appear as part of the linked sites in order to generate income unfairly-essentially capitalising on the credibility and content of the brand of the linked sites. In such cases the question arises whether the link is legal and how the owner of the linked site can control how other sites link to them.
There have been few cases in the UK on the matter and the rights of the linked owner in the past appeared limited here.
A simple link from the linking site to the linked site arguably could be legal as the creation of a public website implies a licence to link to it.
Basic copyright law of the past would appear to back this up as arguably no copying occurs by the linking-rather it operates as an access path that guides visitors to the other site. This premise was supported by a Californian case in 2000 Ticketmaster Corp v Tickets.com Inc which held hyperlinking did not violate US copyright law.
However since the EU Copyright Directive 2001 created The Copyright and Related Rights Regulations 2003 the position may have changed. The Regulations gave authors the exclusive right to control any electronic communication of their work to the public. There is no case law as yet but arguably the act of linking constitutes “making available to the public” as the Copyright Designs and Patent Act 1988 (CPDA) is amended by the Regulations and so express informed consent is required. Failure to obtain the consent of the linked website owner could mean copyright infringement-an expensive mistake.
The law is grey here at the moment and common practice or indifference may not excuse linking websites that fail to seek and obtain the linked website’s consent. If you are seeking to build traffic through links the best way forward is informed written consent-similar to a licence.
