Another On-line Copyright Issue

Hypertext links, presents additional copyright issues. For instance, a developer writes a web page having an original picture with a hypertext link to a part of another’s web page. Another developer takes the picture and the link to the (others) computer and incorporates it in his or her web page. The issue then
becomes can the person that took an original graphic and link escape liability. Perhaps, it could be argued a graphic and link are not within the subject matter of copyright, since it is serves a utilitarian function. Copyright of items that serve a utilitarian function is different, as copyright law does not aim to grant monopolies to everyone with utilitarian articles. This concept is codified in section 113 of the copyright statute. The statute gives protection to

“pictorial, graphic, and sculptural works” …. ‘only if and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

In addition, courts have expanded the definition of ‘separately from’ to include ‘conceptual separation’.26 However, when one apples the statute to the facts, it is likely that a link embedded in a graphic can be separated and the link can just be text protecting the web page developer’s original graphic. This, is another example of how current copyright law can reach into on-line issues. Although hypertext links allow current copyright law to reach into the world of the internet, developers are still copying.(Curiously, only a few of the infringed) developers have made infringement claims.
However, the issue remains that persons are still copying and there seems to be no infringement being claimed for this activity.