Challenges for Copyright by ICT: Digital Content Providers

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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Transparent customers. Direct marketing online



This process works even better on the Internet because of the latter's interactive nature. "The Internet is a dream to direct marketers", said Wil Lansing, CEO of the American retailer Fingerhut Companies. Many services require you to register online, requiring users to provide as much information about them as possible. And in addition, the Internet is fast, cheap and used by people who tend to be young and on the search for something interesting.

Many web sites also are equipped with user tracking technology that registers a users behaviour and preferences during a visit. For example, user tracking technology is capable of identifying the equipment and software employed by a user, as well as movements on the website, visit of links etc. Normally such information is anonymous, but can be personalised when it is coupled with online registration, or when personal identifcation has been obtained from other sources. Registration is often a prerequisite not just for obtaining a free web mail account, but also for other services, such as personalised start pages. Based on the information provided by user, the start page will then include advertisements and commercial offers that correspond to the users profile, or to the user's activity on the website.

One frequent way of obtaining such personal information of a user is by offering free web mail accounts offered by a great many companies, internet providers and web portals (e.g. Microsoft, Yahoo, Netscape and many others). In most cases, users get "free" accounts in return for submitting personal information and agreeing to receive marketing mails. Free web mail accounts are a simple and effective direct marketing and data capturing strategy which is, however, rarely understood as such. However, the alliances formed between direct advertising and marketing agencies on the one hand, and web mail providers on the other hand, such as the one between DoubleClick and Yahoo, show the common logic of data capturing and direct marketing. The alliance between DoubleClick and Yahoo eventually attracted the US largest direct marketing agency, Abacus Direct, who ended up buying DoubleClick.

However, the intention of collecting users personal data and create consumer profiles based on online behaviour can also take on more creative and playful forms. One such example is sixdegrees.com. This is a networking site based on the assumption that everybody on the planet is connected to everybody else by a chain of six people at most. The site offers users to get to know a lot of new people, the friends of their friends of their friends, for example, and if they try hard enough, eventually Warren Beatty or Claudia Schiffer. But of course, in order to make the whole game more useful for marketing purposes, users are encouraged to join groups which share common interests, which are identical with marketing categories ranging from arts and entertainment to travel and holiday. Evidently, the game becomes more interesting the more new people a user brings into the network. What seems to be fun for the 18 to 24 year old college student customer segment targeted by sixdegrees is, of course, real business. While users entertain themselves they are being carefully profiled. After all, data of young people who can be expected to be relatively affluent one day are worth more than money.

The particular way in which sites such as sixdegrees.com and others are structured mean that not only to users provide initial information about them, but also that this information is constantly updated and therefore becomes even more valuable. Consequently, many free online services or web mail providers cancel a user's account if it has not been uses for some time.

There are also other online services which offer free services in return for personal information which is then used for marketing purposes, e.g. Yahoo's Geocities, where users may maintain their own free websites, Bigfoot, where people are offered a free e-mail address for life, that acts as a relais whenever a customer's residence or e-mail address changes. In this way, of course, the marketers can identify friendship and other social networks, and turn this knowledge into a marketing advantage. People finders such as WhoWhere? operate along similar lines.

A further way of collecting consumer data that has recently become popular is by offering free PCs. Users are provided with a PC for free or for very little money, and in return commit themselves to using certain services rather than others (e.g. a particular internet provider), providing information about themselves, and agree to have their online behaviour monitored by the company providing the PC, so that accurate user profiles can be compiled. For example, the Free PC Network offers advertisers user profiles containing "over 60 individual demographics". There are literally thousands of variations of how a user's data are extracted and commercialised when online. Usually this happens quietly in the background.

A good inside view of the world of direct marketing can be gained at the website of the American Direct Marketing Association and the Federation of European Direct Marketing.

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