Hyperlinking these days, however, is a technical term that is not only fraught with controversies of no mean dimension, but if done without permission, can lead to a judicial cause of action.
Hyperlinking is the process that connects one Internet site to another site. Should another site produce or cause an unauthorized link which is what is now called a "deep link," meaning a link to another site at any location other than the other site’s homepage, legal action against this act called "deep linking" is possible. If the link casts one’s site to be placed in a bad light, or creates an impression that the other should get credit for your site, in the same manner, appropriate legal action can accrue.
Philippine legislation – R.A. 8792, otherwise known as the Philippine e-commerce law, is an act "providing for the recognition and use of electronic, commercial and non-commercial transactions, penalties for unlawful use thereof and other purposes" – has nothing on illegal hyperlinking.
What does apply within the Philippine context are the traditional laws on copyrights, trademarks, patents, etc. But within the context of such an open system that is the Internet, those laws and regulations regarding copyrights and trademarks can prove to be not only insufficient but irrelevant. Jurisprudential law on the matter is still evolving. Judicial precedents are, of course, increasing from the global standpoint, but national/domestic laws on the matter are definitely in a state of flux, if not absent.
The development of laws and regulations against infringement has become extremely complex. The fact that the issuances of state jurisdictions vary so much makes the situation more complicated.
Linking to another’s Internet website without permission can be a form of Internet trademark infringement. Links are often graphics, logos, or highlighted text that, if activated by the viewer normally through a simple click of the computer mouse, will display a new Internet website page.
I remember in October 2004, while I was in Boston, even though a breakfast appointment at 7 a.m. is a difficult hurdle to handle with jet lag, travel fatigue and all, I accepted right away an invitation for breakfast at the Four Seasons Hotel. It was not only because the breakfast buffet has always been known to be an excellent one, but because I didn’t have to get a cab to get there from my hotel, for I was going to be fetched by my host in his car. But managing to be right there at the lobby of the Copley Plaza Hotel at 6:55 a.m., ready to be fetched, meant being bleary-eyed from lack of sleep, coupled with the fact that there was no time to go through a woman’s normal ritual of putting on her makeup. To hide my dismal face, my big dark sunglasses were the easiest thing to put on and hide as much of my eyes and face as possible. But the opportunity to discuss current Internet issues with this particular American expert who had become a friend of mine through physical hyperlinking in the past, could not be missed.
After all, I have always borne in mind something that Louis Pasteur said, "There is no disinfectant like knowledge learned." He also said, "In the field of observation, knowledge favors the prepared mind."
Hence, I got a lot of information on how US federal and state jurisdictions have been handling the critical issues that have arisen from the Internet. Dr. Robert Bruce, expert par excellence on IT legal issues, is someone I have always respected since I first met him at a Singapore telecom conference more than 15 years ago. He is also a gentleman to the core.
US statutes that protect intellectual property expressly limit the use of intellectual property, which includes many aspects of an Internet website in a commercial context. To be more precise, according to Bruce, the Lanham Act of 1994 prohibits the use in commerce of any "reproduction, counterfeit, copy, or colorable imitation of a registered mark in such a way as to likely cause confusion and mistake, or to deceive." And, of course, there are a lot of federal trademark infringement laws and state trademark infringement statutes, just as the Philippines has its traditional infringement laws.
The trademark helps consumers identify certain goods. A lot of people have argued that the use of linking reduces the value of a trademark because it promotes confusion. More than a hundred years ago in fact, Justice Oliver Wendell Holmes said that "the essential value of a trademark property right was associated with preventing confusion."
We both noted that hyperlinking can be done even without permission so long as the Internet site-to-site links merely access the home page of an Internet website. Comparing notes, we found out that the Philippines and the US are in the same boat regarding this matter.
In fact, when one site is linked to another’s Internet homepage site, there is a potential benefit to the other Internet site owner. This, of course, allows or causes the homepage owner to increase the exposure of his or her site’s information and potential advertising.
It is when the link bypasses the homepage and attaches to an internal page of the Internet website that problems arise. When this happens, when the hyperlinker is able to bypass the homepage and go directly to other information, the homepage owner gets no benefit from the link to his or her internal website pages, hence, gets disgruntled and fumes. Deep linking then happens and this is the one that is susceptible to trademark infringement.
The Internet, because it allows data, images and text to be accessed, uploaded, and downloaded globally, creates legal issues relating to copyright law. Copyright laws address the transgression of one or more of the copyright owner’s exclusive rights. These exclusive rights include the right to distribute copies of the protected work, to make derivatives of the protected work, among others.
But determining whether such violations have occurred through action on the Internet is complicated. Courts throughout the world are right now in disagreement as to whether data transmitted through the world wide web are copies for purposes of copyright law protection.
There are presently two treaties adopted by the World Intellectual Property Organization (WIPO), which have definitely created a new exclusive right of transmission of a copyrighted work. It is therefore possible that e-transactions and hyperlinking acts that are lawful by the standards of some liberal state jurisdictions, as well as of the US, may not be lawful outside those jurisdictions.
Now, if copyright protection and website exclusivity are causes of trepidation, those who create e-mail or Internet web pages should give explicit copyright or trademark notices. These notices should be posted on all of their exclusive material and should be placed in such a way as to virtually guarantee that a viewer/hyperlinker or deeplinker of the e-content will have actual or constructive knowledge of the notice.
As for Dr. Bruce and myself, we both agreed that physical hyperlinking is the best way to go.