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Re: "Right to Link" In the News

From: Konstantinov Sergey <twirl@yandex-team.ru>
Date: Thu, 19 Sep 2013 14:49:24 +0400
To: "ashok.malhotra@oracle.com" <ashok.malhotra@oracle.com>, "Appelquist Daniel (UK)" <daniel.appelquist@telefonica.com>
Cc: www-tag <www-tag@w3.org>, Wendy Seltzer <wseltzer@w3.org>
Message-Id: <18131379587764@webcorp1h.yandex-team.ru>
After our last telcon I spent some time with legal codes and formulated some thoughts on linking & copyright. I hope you find them useful.

1. Applicable law.
Though the jurisdiction problem really exists, in fact, copyright law is quite the same in many countries.
Digital copyright principles were established in World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) in 1996. All WIPO members adopted the WCT as a local law - for example, DMCA is US implementation of the WCT.

2. WCT (and other treaties it incorporates, like Berne Convention) describes a set of rights which are exclusevily belong to authors (or copyright holders) and a **complete** list of exceptions to them.

3. Article 8 of the WCT states, that "authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."

As we see, WCT undoubtfully states that the right of making a work available to the public BY ANY MEANS belongs to author exclusively. Publishing hyperlink to a work definitely makes it available in a sense of WCT as it provides "a way that members of the public may access these works from a place and at a time individually chosen by them". In that sense linking is NOT the same as referring: when you're referring a work, you state its name and catalogue number; when you link it, you state WHERE to found it. URN of a work doesn't break author's exclusive right, but URL does. The only question here is whether you'd be found guilty of knowingly violating the copyright or not -- it depends whether you'd be able to prove "fair use" or not. The link itself is illegal in any case.

So, my (sad) conclusion is: in general, linking *may* violate the copyright in terms of current law. In my view it is useless to try to protect "right of linking" under current law since current copyright law IS really treating the existence of the Web as a whole.

15.09.2013, 20:31, "Ashok Malhotra" <ashok.malhotra@oracle.com>:
> Hi Dan:
> For some reason I cannot find the article even though I have a NY Times subscription!
> Could you send the title of the article so that I could search for it?
>
> The blog I wrote about Linking http://malhotrasahib.blogspot.com/2013/07/linking-and-law.html
> goes a bit further in making the analogy between linking and free speech.
>
> This work stalled because we did not get a clear idea of the message the W3C wanted to send and
> the form it should be sent.  If we can get some direction on this, I'm happy to do more work on it.
> All the best, Ashok
>
> On 9/10/2013 3:53 AM, Appelquist Daniel (UK) wrote:
>
>>  Related to the TAG's work on publishing and linking on the Web, I read the
>>  following with some alarm in this morning's paper:
>>
>>  http://nyti.ms/17Qdf8H
>>
>>  #RightToLink is trending on Twitter in relation to this.
>>
>>  Wendy – the TAG made an attempt to tackle this space in order to provide
>>  fodder for a "friend of the court" document for cases such as this. The
>>  result was the following:
>>
>>  http://www.w3.org/TR/publishing-linking/
>>
>>  …which unfortunately did not go far enough (in my view) in articulating a
>>  connection between linking and freedom of expression.
>>
>>  In this case reported in the NY Times, considering the "chilling effect"
>>  of the legal restriction of linking, does it make sense for W3C to weigh
>>  in, and if so could we adapt some of the thinking in this document to do
>>  so, from a perspective of clarifying Web architecture.
>>
>>  Thanks,
>>  Dan Appelquist
>>  TAG Co-Chair

-- 
Konstantinov Sergey
Yandex Maps API Development Team Lead
http://api.yandex.com/maps/
Received on Thursday, 19 September 2013 10:49:57 UTC

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