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Whether using Open Graph Protocol to share links and place advertisements violates reproduction or public transmission rights
I. Introduction
In the internet era, we rely heavily on hyperlinks to convey information. Various social media platforms have worked on improving the presentation of hyperlinked content so that viewers can fully comprehend the conveyed information at first glance. This is where Open Graph Protocol, developed by Facebook to optimize its web crawlers, comes in. Open Graph Protocol improves the presentation of URLs to outside webpages shared on Facebook by users. Facebook encourages webpage developers to follow this protocol and incorporate the information and content to be shown into the webpage source codes in the form of webpage metadata (meta tags). Taking advantage of the protocol's mechanism and the preview feature of hyperlinked webpages, some developers exploit the process of viewers linking to the webpages by placing advertisements to gain profit. Does this kind of design violate the reproduction and public transmission rights of webpage owners? The civil lawsuit Judgment 112-Min-Zhu-Su-Zi-25 rendered by the Intellectual Property and Commercial Court provides the following notable insight.
II. The parties' claims:
(i) Plaintiff's claim:
Plaintiff runs the woment.com.tw website that shares various travel information. In 2020, it took a picture of the Danhai light rail (the "picture at issue") and uploaded it to a webpage on its website. Subsequently, Plaintiff discovered that Defendant Justaiwantour ("Justaiwantour") had utilized a webpage program named "global missile system" with Open Graph Protocol setup (the "program at issue") to turn the picture at issue into a link with reproduction function and had posted on Facebook using the link. The program at issue was developed by Defendant Mohist Web Technology Co., Ltd. ("Mohist") at the behest of Defendant Eastern E-Commerce Co., Ltd. ("Eastern"). Plaintiff cites Article 87-1(7) of the Copyright Act to claim that Defendants violated its copyright and shall be liable for civil damages.
(ii) Defendant's claim:
1. Defendant Justaiwantour claims that it merely made use of the hyperlink connecting the websites; that the program at issue is merely a pop-up ad; that it did not use the picture at issue for reproduction or public transmission purposes; and that the picture at issue on Facebook was automatically embedded by Facebook and unrelated to Defendant.
2. Defendant Mohist claims that the picture at issue is not original; and that the only technologies utilized for the program at issue are connection and framing—neither reproduction nor public transmission is involved.
3. Defendant Eastern claims that it did not commission Defendant Mohist to develop the program at issue; and that it is not involved in the actions of Defendant Justaiwantour.
III. The Court's Determination
(i) How the program at issue works
The court refers to the user operating procedure submitted by Defendant and the screenshots submitted by Plaintiff to analyze the workings of the program at issue:
1. From the angle of users of the program at issue
(1) The program at issue shows columns that read "article title," "article URL," "select advertising text," and "select advertisement." Fill in the selected content for the webpage article in the corresponding columns, enter the URL that contains the webpage showing the picture at issue on the woment.com.tw website into the program at issue, and then the system will generate a shareable link.
(2) Share the foregoing link to Facebook, and a link with the configured title, advertising text, and picture will be displayed. The link will show the text "MISSILE.MOHIST.COM.TW" that viewers can click.
2. From the angle of Facebook viewers
(1) Viewers on Facebook see the foregoing link and click it.
(2) Upon entering the advertising webpage configured by the user of the program at issue, viewers click the "x" symbol on the right side of the advertisement.
(3) Viewers are then guided to the webpage showing the picture at issue on the woment.com.tw website.
(ii) Defendants have not infringed copyright
1. The court first recognizes the copyright of the picture at issue.
2. The court adopts Defendant Mohist's argument, recognizing that the technical method used by the program at issue to generate a shareable link remains in the field of "hyperlink" technology despite the inclusion of a pop-up ad, as the generated URL links to the original webpage.
3. Regarding such "hyperlink" technology with advertisement placement, the court cited the criminal lawsuit Judgment 109-Tai-Shang-Zi-2616 rendered by the Supreme Court:
"Hyperlinks as a technical means merely provide an external, already-existing route that sufficiently enables the general public to view and play each of these works. In fact, the person providing or conveying the content of such works is the one who uploads the videos to external audio-video platforms, not the one providing the hyperlinks. Therefore, simply providing a hyperlink does not meet the requirement for constituting 'public transmission.'"
The court also cited the TIPO's directive Zhi-Zhu-Zi-11110021240 for reference:
"Add a pop-up ad to a URL; click on the URL to have the ad shown in a pop-up screen; click to close the ad; and return to the original webpage to continue viewing—the described situation does not seem to differ from the function of a hyperlink and does not involve any copyright infringement."
4. Given the above, the court determines that the program at issue merely provides a hyperlink for viewers to link to the original webpage for viewing pictures and contents; that it is Plaintiff who provides the picture at issue to the public; and that Plaintiff cannot prove that the picture at issue on the post was reproduced by Defendants on Facebook's system. Accordingly, Defendants' actions did not satisfy the requirement for Article 87-1(7) of the Copyright Act to be applicable, i.e. "to provide to the public computer programs or other technology that can be used to publicly transmit or reproduce works."
IV. Conclusion
Technology advances at an ever-increasing pace. Faced with copyright controversies arising from ever-evolving new technologies, the Intellectual Property and Commercial Court goes back to basics by examining the definition of the requirements for constituting infringement as provided in the Copyright Act. One can expect to see more and more controversies arising from the question of whether the following circumstances constitute infringement: a party exploiting the program at issue to conceal a picture in the original webpage within the source code in the form of a URL so as to generate an advertising webpage and let this URL linking to the advertising webpage be shared on a Facebook post, for the purpose of attracting clicks by viewers and taking this opportunity to gain profit through advertisement placement. It would be noteworthy to follow up on any subsequent and related court cases and see whether this court's determination will be upheld.