The IP High Court
of Japan has returned a decision that the use by a website (hereinafter,
referred to as the “current” website) of a copyrighted still photograph or a moving
image (such as a gif or a jpg file) which was originally posted on a different website
(hereinafter, referred to as the “first” website) does not infringe the
original website’s copyright of the image, but could involve “infringement of
moral right of author (right to determine the indication of an author's name,
right to maintain integrity)” (2016(Ne)10101 of April 25, 2018).
This “inline linking”
creates a link from the current website to the first website hosting the image,
so that the image also appears on the current website and completely bypasses the
rest of the content (including advertisements) on other pages of the first
website. This contrasts with “deep linking” in which clicking on (often blue
colored) underlined text on the current
website directly leads to a specific page of another website and bypasses the
rest of the content (including advertisements) on the other pages of the first
website. Both inline linking and deep linking have been subject to copyright infringement
litigation, particularly in the United States, whereas “direct linking” to the
original website (which potentially requires a user to sift through the entire
website to find the sought after image, etc.) has not been subject to copyright
infringement litigation.
This particular case
concerned a photograph which was retweeted, and as a result of the retweeting, the
photograph was somewhat altered in terms of the size or the positioning without
the permission of the photographer.
The IP High Court ruled that this does not constitute copyright
infringement, but does infringe upon the original photographer’s “right to
maintain integrity” of the photograph. Additionally, as the retweeted image did
not contain the original photographer’s name (as a result of the above
mentioned alterations), the original photographer’s right of attribution was
also infringed, albeit not for profit in this case.
Update: On June 5, 2020, the Copyright Act was amended (and will come into effect on January 1, 2021) so that any website which contains links to unauthorized content, an act of uploading a link which would display unauthorized content, and many acts of downloading of unauthorized content could be subject to criminal prosecution.