Network: Copyright cases from Washington to Shetland

Electronic publishing is already leading litigation into previously uncharted territory. Resorting to the courts, however, is not the simple solution it may initially seem. Test cases are furthest ahead in the US, where a number of individuals and organisations are testing current copyright and trademark law.

One, involving 11 freelancers, led by Jonathan Tasini, US National Writers' Union president, comes to trial this autumn. The group is accusing a number of media organisations - including the publishers of the New York Times, Newsday and Sports Illustrated - of the unauthorised sale of their articles via online databases and CD-Rom.

Another is a case against Total News Inc lodged by the Washington Post and several other news providers, including CNN, Dow Jones, Reuters and Time Life.

Total News provides links to other organisations' news pages by frames that allow Web pages to be split into multiple windows which can be operated independently. One effect of this is that a frame can be used to create a window remaining on-screen while other sites are accessed.

This means the originator's frame, which might carry advertising, could be obscured and, as a result, devalued, the plaintiffs claim. The effect of such cases in the UK, however, can only be negligible, says Clive Thorne, intellectual property partner at solicitors Denton Hall.

"Any copyright or trademark problems in the UK would be determined by English principle under English law," he explains. A number of differences exist between the US and UK definitions of what constitutes copyright and where copyright is infringed. "We are probably not likely to see a standard approach to copyright in this area, other than through broad international conventions that exist to give general guidelines," he adds. "The detail of how these conventions are interpreted remains within national law."

Which is why British publishing attention is now focused on a test case between two electronic newspapers in Shetland, which is due to go to court in October.

This dispute dates back to November 1995, when Shetland News was launched as an online daily Internet news service. The following spring, The Shetland Times newspaper launched its own online service. The Shetland News site referred to Times stories and used hypertext links to take surfers from one to the other. The Times, however, objected, claiming that unauthorised links between Web sites were a breach of copyright.

While access to its site was free and it carried no advertising, the Times claimed that it planned to do so in the future. It claimed the News was using headlines on its site from the Times and that surfers using the News links might miss any future advertising carried by the Times on its home page.

Last December, the Scottish courts imposed a temporary court ban on the News. "The resolution will go some way towards clarifying the situation," Mr Thorne believes. "But not far enough".