Copyright requirements and online infringement: linking, framing, caching, uploading and downloading

Law of Intellectual Property and Information Technology · Unit III · Topic 5 of 12 · 8 min read

The basic requirements for copyright under the Copyright Act, 1957 (work, originality after Eastern Book Co., expression, fixation, nationality), the rights engaged online, and how the law treats hyperlinking, deep linking, framing and embedding, caching, uploading and downloading, with US, UK, CJEU and Indian cases.

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On this page

1. Basic requirements for protection
2. The rights engaged online
3. Linking
4. Framing and embedding
5. Caching
6. Uploading
7. Downloading
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Every online act is tested against the same two rights: the right to reproduce the work, which includes storing it by electronic means, and the right to communicate it to the public, which includes making it available. Uploading and downloading make copies; linking and framing make no copy, so the question is whether they communicate. Caching makes a copy but is saved by the transient storage exceptions in section 52(1)(b) and (c).

1. Basic requirements for protection

A work of a protected category. Section 13 protects original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Literary works include computer programmes, tables and compilations including computer databases (section 2(o)).
Originality (for the first four categories). The work must originate from the author and not be copied. In Eastern Book Co. v. D.B. Modak, 2007 INSC 1266, the Supreme Court rejected both the “sweat of the brow” standard and the US requirement of creativity in Feist (1991) as stated, and adopted the Canadian test of CCH v. Law Society of Upper Canada (2004): skill and judgment with a minimal degree of creativity. Copy-edited judgments were not protected as such, but the publisher’s headnotes, paragraphing and editorial additions were.
Expression, not ideas. R.G. Anand v. Delux Films, 1978 INSC 138: there is no copyright in an idea, subject matter, theme or plot; infringement is found where the copy is substantial, so that an ordinary viewer gets the unmistakable impression that one is a copy of the other. TRIPS Article 9(2) and WCT Article 2 state the same rule.
Fixation. The Act has no general fixation requirement, but in practice a work must exist in some material form to be proved, and digital storage counts.
Connecting factor. Section 13(2): first publication in India, or the author being an Indian citizen or domiciled here; foreign works are protected through the International Copyright Order, 1999 under section 40, implementing Berne and TRIPS national treatment.
No formalities. Copyright arises on creation; registration under section 45 is optional and only evidence (Berne Article 5(2)).

2. The rights engaged online

Reproduction “in any material form including the storing of it in any medium by electronic means” (section 14(a)(i)); for films and sound recordings, making a copy including storing it in any medium by electronic or other means.
Communication to the public (section 2(ff)): making a work or performance available for being seen or heard or otherwise enjoyed by the public, directly or by any means of display or diffusion other than issuing physical copies, whether simultaneously or at places and times chosen individually, and whether or not any member of the public actually sees or hears it. The last limb is the “making available” right of WCT Article 8.
Issuing copies and, for programmes, films and recordings, commercial rental.
Infringement (section 51): doing any of these without licence, or permitting any place to be used for communication to the public for profit, unless the person was not aware and had no reasonable ground to believe the communication would infringe (section 51(a)(ii)).

3. Linking

A hyperlink tells the browser where to find a page; it does not copy the page. A surface link goes to the home page; a deep link goes to an inner page, bypassing the home page and its advertisements.

Shetland Times v. Wills (Court of Session, Scotland, 1996): an interim interdict was granted against a news site that deep-linked to the plaintiff’s stories using its headlines. The case turned on the headlines as works and on a broadcasting analogy; it was not tried.
Ticketmaster v. Tickets.com (C.D. Cal., 2000): deep linking is not infringement, because no copy is made and the user is transferred to the genuine page. A public website is like a library card catalogue that points to the book.
Svensson v. Retriever Sverige (CJEU, 2014): a link is an act of communication, but a link to a work freely available on the internet with the owner’s consent does not reach a new public, so it does not infringe. A link that circumvents a paywall does.
GS Media v. Sanoma (CJEU, 2016): where the linked work was posted without consent, the linker infringes if it knew or ought to have known that, and knowledge is presumed where the link is posted for profit.

Indian law has no decided case on simple linking. Applying section 2(ff), a link to lawfully available content is unlikely to be treated as a fresh communication, while linking to pirated content for profit could be infringement or abetment and is attacked through blocking orders.

4. Framing and embedding

Framing displays another site’s content inside one’s own page, with one’s own branding and ads around it, so that the user may not know the source.

Washington Post v. TotalNews (S.D.N.Y., 1997): news publishers sued a site that framed their pages inside its own advertising. The case settled, with TotalNews agreeing to link without framing. The claims were trade mark and unfair competition as much as copyright.
Perfect 10 v. Amazon.com (9th Cir., 2007): the server test. Google’s framing of full-size images stored on other servers did not “display” them, because Google did not store them; thumbnails it stored were fair use.
Goldman v. Breitbart (S.D.N.Y., 2018) declined to follow the server test for embedded tweets, holding that display occurs on the embedding site.
BestWater (CJEU, 2014) treated framing of freely available content like linking; VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz (CJEU, 2021) held that framing which circumvents technical measures against framing is communication to a new public.

5. Caching

Caching stores temporary copies to speed up access: in the user’s browser, at the ISP’s proxy server, or in a search engine’s cache. Each is a reproduction.

Section 52(1)(b): transient or incidental storage of a work purely in the technical process of electronic transmission or communication to the public is not infringement.
Section 52(1)(c): transient or incidental storage for the purpose of providing electronic links, access or integration, where not expressly prohibited by the right holder, is not infringement unless the person knows or has reasonable grounds to believe the copy is infringing. On a written complaint from the owner, the person must stop providing access for 21 days, and if no court order is produced in that period may restore it. The procedure is set out in the Copyright Rules, 2013.
US: Field v. Google (D. Nev., 2006): Google’s cached links were protected by implied licence (the author did not use the standard no-archive instruction), fair use and the section 512(b) caching safe harbour. EU: Public Relations Consultants Association v. Newspaper Licensing Agency (CJEU, 2014): on-screen and cache copies made while browsing are temporary acts within Article 5(1) of the InfoSoc Directive.

6. Uploading

Uploading a work to a server reproduces it, and making it accessible communicates it to the public. The uploader is a primary infringer. The harder question is the platform.

Super Cassettes Industries v. MySpace (Delhi High Court Division Bench, 2016): the platform was not liable as it lacked actual knowledge of specific infringing files; section 79 of the IT Act applies to copyright claims; it must remove content on specific notice.
Stichting Brein v. Ziggo (CJEU, 2017): the operators of The Pirate Bay, who indexed and managed torrents with knowledge of infringement, themselves communicated to the public.
YouTube and Cyando (CJEU, 2021): a platform communicates if it contributes beyond merely providing facilities, for example by knowing of specific infringing content and not removing it; Article 17 of the DSM Directive (2019) now makes content-sharing platforms directly liable unless they make best efforts to obtain licences and to prevent availability.

7. Downloading

Downloading makes a reproduction on the user’s device and is infringement unless licensed or excepted. The fair dealing exception for private or personal use including research (section 52(1)(a)(i)) is narrow and is not generally thought to cover downloading entire films or music from pirated sources. Section 52(1)(ad) allows a copy of a computer programme for non-commercial personal use only from a personally legally obtained copy.

A&M Records v. Napster (9th Cir., 2001): users who uploaded and downloaded MP3 files were direct infringers, not fair users; Napster, which ran a central index with knowledge, was contributorily and vicariously liable.
MGM Studios v. Grokster (US Supreme Court, 2005): a distributor of decentralised peer-to-peer software was liable for inducing infringement where it promoted the software for infringing use. Sony v. Universal (1984), protecting technology capable of substantial non-infringing uses, did not help.
India: downloading is rarely prosecuted. Enforcement is against the sites through blocking orders (UTV Software v. 1337x.to, Delhi High Court, 2019) and against intermediaries on notice. Section 63B makes knowing use of an infringing copy of a computer programme on a computer an offence.

Trap. Do not treat linking as reproduction. No copy is made by the linker. The live question in every jurisdiction is communication to the public, and the answer depends on whether the linked content was lawfully available and whether the linker knew it was not.

How this is examined

Likely long questions: “Explain the basic requirements for copyright protection under the Copyright Act, 1957.” “Discuss online copyright infringement with reference to linking, framing and caching.” “Is uploading and downloading of copyrighted material an infringement? Discuss the liability of intermediaries.”

Likely short notes: deep linking; framing; caching; section 52(1)(c); server test; Svensson; Napster; Eastern Book Co. v. Modak.