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Challenges for Copyright by ICT: Digital Content Providers |
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Providers of digital information might be confronted with copyright related problems when using some of the special features of hypertext media like  frames and hyperlinks (which both use third party content available on the Internet to enhance a webpage or CD ROM), or operate a search engine or online directory on their website.
Framing
Frames are often used to help define, and navigate within, a content provider's website. Still, when they are used to present (copyrighted) third party material from other sites issues of passing off and misleading or deceptive conduct, as well as copyright infringement, immediately arise.
Hyperlinking
It is generally held that the mere creation of a hyperlink does not, of itself, infringe copyright as usually the words indicating a link or the displayed URL are unlikely to be considered a "work". Nevertheless if a link is clicked on the users browser will download a full copy of the material at the linked address creating a copy in the RAM of his computer courtesy of the address supplied by the party that published the link. Although it is widely agreed that the permission to download material over the link must be part of an implied license granted by the person who has made the material available on the web in the first place, the scope of this implied license is still the subject of debate. Another option that has been discussed is to consider linking fair use.
Furthermore hyperlinks, and other "information location tools", like online directories or search engines could cause their operators trouble if they refer or link users to a site that contains infringing material. In this case it is yet unclear whether providers can be held liable for infringement.
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Liability of ISPs
ISPs (Internet Service Provider), BBSs (Bulletin Board Service Operators), systems operators and other service providers (in the U.S.) can usually be hold liable for infringing activities that take place through their facilities under three theories: 1) direct liability: to establish direct infringement liability there must be some kind of a direct volitional act, 2) contributory liability: a party may be liable for contributory infringement where "... with knowledge of the infringing activity, [it] induces, causes or materially contributes to the infringing activity of another." Therefore a person must know or have reason to know that the subject matter is copyrighted and that particular uses violated copyright law. There must be a direct infringement of which the contributory infringer has knowledge, and encourages or facilitates for contributory infringement to attach, and 3) vicarious liability: a party may be vicariously liable for the infringing acts of another if it a) has the right and ability to control the infringer's acts and b) receives a direct financial benefit from the infringement. Unlike contributory infringement, knowledge is not an element of vicarious liability.
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