Our ever-so-slightly belated invitee blogger for August 2003 is Naomi Gross. Naomi, a solicitor inwards the Intellectual Property Department of London solicitors Herbert Smith, has made a quest herself amongst merely about recent articles inwards the European Intellectual Property Review on exhaustion of rights. But inwards this spider web log Naomi tackles merely about other discipline exclusively -- hypertext links in addition to infringement of database right. Naomi writes:
"In hypertext linking the interface betwixt constabulary in addition to technology requires consideration of several dissimilar intellectual belongings rights –copyright, passing off in addition to database right. It is immediately merely about 6 years since the Scottish Court of Session flora an arguable copyright infringement in addition to granted an interim interdict preventing the Shetland News from creating hypertext links on its website to word stories on the Shetland Times website (Shetland Times v Wills). How has the constabulary evolved since then? There has been a disappointing dearth of farther guidance from the English linguistic communication or Scottish courts. In fact, Lord Hamilton’s determination remains the only decided UK of Britain in addition to Northern Republic of Ireland case. However, a issue of cases convey been brought inwards other European countries, to a greater extent than ofttimes than non based on infringement of database right.
In Jan 2001 StepStone announced it had obtained an injunction inwards Federal Republic of Federal Republic of Germany against OFiR.com, the Danish media group, preventing OFiR deep linking to StepStone’s website. Both companies offered online recruitment portals inwards several European countries, including Federal Republic of Federal Republic of Germany in addition to the UK. StepStone sought the injunction because OFiR used the link to substantiate a claim virtually the large issue of jobs available at OFiR’s website, in addition to because the deep links meant that visitors to StepStone’s site via the links bypassed the banner advertising on the abode page. This representative was hailed every bit the kickoff (or virtually the first) fourth dimension a spider web proprietor had used the Database Directive to preclude hypertext linking to its website. While the High German judgment is confidential, the probable rationale for the determination is that the links created past times OFiR were a reutilisation of a substantial business office of StepStone’s website, every bit these links made surely of StepStone’s spider web pages available to the public.
In merely about other High German case, the Landgericht Cologne held that the framing of poems from an online database of poems maintained past times the claimant was an infringement of the database correct (Derpoet.de v. *.de). The infringement consisted of the accused allowing access to the claimant’s database via its ain servers. Similarly, the Tribunal de Grande Instance de Paris ordered a accused to pay damages to a spider web publisher for infringement of the database correct every bit a effect of deep linking to an job agency website (Keljob v. Cadremploi ).
By contrast, inwards Kranten.com, the District Court of Rotterdam upheld the correct of a word search engine (Kranten.com) to display the headlines of paper articles on the claimant’s website every bit links to the total articles (Algemeen Dagblad v Eureka Internetdiensten [2002] ECDR 1). The Dutch courtroom flora that the information used past times the accused did non qualify every bit a database because the claimant newspapers had non made the requisite substantial investment inwards the headlines themselves. The courtroom besides commented that the claimants could convey prevented the deep links past times technical means. As far every bit arguments regarding lost advertising revenue were concerned, the courtroom was unimpressed. The claimants showed no existent impairment in addition to the total of traffic to their site likely increased every bit a effect of the defendant’s links.
While no UK of Britain in addition to Northern Republic of Ireland courtroom has dealt withdraw amongst infringement of database correct inwards the linking context, the decisions of Mr Justice Laddie inwards the High Court in addition to of the Court of Appeal in British Horseracing Board Limited v. William Hill [2001] ECDR 257 in addition to [2002] ECDR 41 advise that the English linguistic communication courts are inclined to translate the provisions of the Database Directive really broadly. It tin give the axe only survive a affair of fourth dimension earlier a UK of Britain in addition to Northern Republic of Ireland courtroom may survive prepared to entertain the possibility that surely unauthorised links infringe the database right".
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