World Wide Web Construction

New areas of intellectual property concern are facing the construction and design of websites. These concerns include the increasing competition over domain names, the copyright infringement of HTML structures, and the debate over the use of hyperlinks.

Domain Names

Increase in the commercial use of the WWW is making the domain name one of the most sought after components of a web site. Domain names are unique electronic addresses that are used to identify e-mail users and websites. The domain name is part of the URL, or uniform resource locator, which is used to tag websites. For example, www.ipmag.com is the URL for the homepage of the Intellectual Property Magazine; the associated domain name is ipmag.com The necessity of domain names on the WWW has sparked competition for these names and this has resulted in the need for domain name protection. Similar to names in traditional form, domain names cannot be protected through copyright legislation; they are instead covered by the Trade Marks Act (Kelly and Kumor, 1995).

Trade marks are part of intellectual property legislation; they grant the owner exclusive use of the trade mark. For example, Microsoft® and the Microsoft Windows® logo would both fall under the protection of trade marks; similarly, www.microsoft.com would give Microsoft® exclusive rights to use that particular domain name. Unlike copyright, which is automatically given protection, a trade mark must be registered through the Internet Network Information Society or InterNIC. Due to the international registration of domain names, each is unique and thus frequently competed for (Kelly and Kumor, 1995).

HTML Structure

Web pages are complex digital works that are constructed through the use of HTML or hypertext markup language. This language translates computer formatting codes into web documents that are universally retrievable on the WWW. Potential copyright infringement comes into play due to the ease of replication that is facilitated by web browsers such as Netscape which can show the HTML structure of a virtual document. These structures can be downloaded and manipulated to create another potentially similar web site. Because content on the web is virtual and electrons are malleable, copying and editing of HTML is done with relative ease.

Woody (1996) addresses the concerns surrounding the piracy and alteration of entire web sites. Piracy includes using the original structure as a model from which to learn how to use HTML, copying and altering parts to create parody sites, and the alteration of sites for fraudulent purposes. The first rationale behind the copying of HTML structures of an existing document is to use it as a template to work from when learning how to create web documents. However, there are currently many authoring programs available that can assist a novice in constructing a website. Another reason for copying HTML structure is for the creation of parody or mock web sites dubbed para-sites by Hotwired writer Michael Schrage. Para-sites are identical in design and appearance to the original site that it is intending to mock. What differs is the textual content which offers humorous commentary. An example of a para-site is Stale which offers a spoof on Michael Kinsley’s Slate website. This raises the question of how far copyright will go to protect the rights of creators, and whether the mock derivative sites will be granted copyright protection. The third form of piracy of HTML structures is more serious, involving the fraudulent use of duplicated web sites. Woody illustrates this fraud through a tale of two websites, one which provides legitimate fee-based legal services, and the other that has fraudulently copied this website. This fraudulent website has changed part of the original HTML code so that credit card numbers are inadvertently given to its site.

Although it can be argued that web site structures are analogous to book structures, it can be asserted that web design and construction can be in and of itself a work to be protected. Websites incorporate the use of animation, fonts, layout, placement of pictures which all contribute towards the creation of a unique web site. According to Radcliffe "site design is potentially copyrightable, though copyright protection is thin" (cited in Woody, 1996, p. 2).

Hypertext Links

A new concern that is emerging in cyberspace is that of hypertext links in web documents. Hypertext is "non-sequential writing", a term coined by Ted Nelson (Zeltser, 1995). In cyberspace, web sites provide electronic links to works on other sites, thereby connecting these sites together through the URL. These links are dubbed hypertext links or hyperlinks which enables the concept of non-linear browsing of textual, photographic, artistic, and multimedia works on the World Wide Web. Thus, digital works by one creator can be accessed through sites of another creator. There is growing concern that these links may infringe the rights of the creator.

Although it is suggested that URLs are merely electronic addresses that are analogous to reference citations, Merrill and Burger (1996) assert that unwelcome hyperlinks can infringe the intellectual property concept of distribution rights. To illustrate this concern, they present the case of The Shetland Times Ltd. vs Dr. Jonathon Willis and Zetnews. The News creates links to headlines in The Shetland Times who makes no reciprocal links back to The News. Thus, readers of The News, through the use of hyperlinks, would read articles by The Times under the impression that they are reading works of The News. It would appear that The News was infringing on the distribution rights of The Times.

Within this case, issues of fair dealing and contributory infringement are brought to light. Under the provision of fair dealing, the use of another creator’s works is permissible with the inclusion of references to the original works. In this case, the only reference made was the link, and the link did not credit The Times as the source of the article. So although a link was provided, it appeared to have been made unfairly. The other concept, contributory infringement, refers to the notion that by linking The News with The Times, an infringing copy of The Times’ work is being made.

The argument arises that if a work is available on a web site, then it is liable to the principle of universal readership, as aforementioned. Thus, the assumption is that works are created with the intention that worldwide access will be given to the site and its contents. Hyperlinks serve to facilitate this access. However, with respect to moral rights, a creator may choose not to be associated with another web site. In addition, hyperlinks could be construed as distribution of the creators’ works. The basis for this is that unlike citations and references in traditional textual works, hyperlinks not only provide reference to the URL, but also serve as a device to connect you to the work (Templeton, 1997).

Lastly, the confusion of authorship, as illustrated in the Shetland case, is also broached by Templeton who asserts that moral rights may be affected as users of the web may not realize who the actual creator is. The false impression of ownership, whether intentional or unintentional, constitutes an infringement of intellectual property.