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RE: Revised TAG finding: '"Deep Linking" in the World Wide Web'

From: Bullard, Claude L (Len) <clbullar@ingr.com>
Date: Fri, 12 Sep 2003 09:10:04 -0500
Message-ID: <15725CF6AFE2F34DB8A5B4770B7334EE03F9EC64@hq1.pcmail.ingr.com>
To: "'Kay, Michael'" <Michael.Kay@softwareag.com>, "Ian B. Jacobs" <ij@w3.org>, www-tag@w3.org
That description (Michael's) is similar to the U.S. SR or sound recording
copyright which is a copyright of the fixed form.
"Copyright in a sound recording protects the particular series of sounds
that are "fixed" (embodied in a recording) against unauthorized reproduction
and revision, unauthorized distribution of phonorecords containing those
sounds, and certain unauthorized performances by means of a digital audio
transmission. The Digital Performance Right in Sound Recordings Act of 1995,
P.L. 104-39, effective February 1, 1996, created a new limited performance
right for certain digital transmissions of sound recordings. 
Generally, copyright protection extends to two elements in a sound
recording: (1) the performance and (2) the production or engineering of the
sound recording. 
A sound recording is not the same as a phonorecord. A phonorecord is the
physical object in which works of authorship are embodied. The word
"phonorecord" includes cassette tapes, CDs, LPs, 45 r.p.m. disks, as well as
other formats."
Click on link ("see details").

-----Original Message-----
From: Kay, Michael [mailto:Michael.Kay@softwareag.com]
Sent: Friday, September 12, 2003 6:11 AM
To: Ian B. Jacobs; www-tag@w3.org
Subject: RE: Revised TAG finding: '"Deep Linking" in the World Wide Web'

I don't find legal German easy, and I'm not a lawyer anyway, but I do find
this case rather puzzling. It doesn't really seem to hinge on "deep linking"
at all. It relates to the right of one party to protect its investment in
the arrangement and presentation of its web site, as distict from the actual
pages within the web site.

My reading is that the complaint described in this judgement is that someone
provided a view into someone else's database without the database owner's
permission. I would have thought that was contrary to the European Database
Directive [2], and it surprises me that they didn't use that legislation to
make their complaint.

Article 5 of the EDD reads: 

In respect of the expression of the database which is protectable by
copyright, the author of a database shall have the exclusive right to carry
out or to authorize:

(a) temporary or permanent reproduction by any means and in any form, in
whole or in part; 

(b) translation, adaptation, arrangement and any other alteration; 

(c) any form of distribution to the public of the database or of copies

The definition of "database" certainly covers the kind of web site we are
talking about here, e.g. a searchable news archive, and "adaptation" and
"arrangement" seem to cover the activity of creating a view of the database
with deep links into its content.

The European Database Directive was established because people felt that
there was insufficient IPR recognition of the investment made by companies
who compile information that itself might be in the public domain, e.g.
legal databases; it creates a copyright in the arrangement and selection of
material that is separate from any copyright in the material itself.

Michael Kay 
(this is not in any way an expert opinion) 

[2] http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html
Received on Friday, 12 September 2003 10:12:14 UTC

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