Linking to third-party contents – infringement of copyright?

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It is impossible to imagine the Internet without hyperlinks. However, from a copyright perspective, you link to third-party content and this quickly raises the question of whether you can infringe the copyrights of another person as a result, in particular whether you are making third-party content unlawfully available in the process.

In the case of links, a distinction must be made between visible links and those which cannot be recognised as such. Visible links include surface links, which link to the start page of a website, and deep links, which link to a subpage (a website, webpage) of a website. The person who sets such a link reveals that they are pointing out third-party content or the user of such a link realises that they will be directed to another website or webpage by linking to the afore-mentioned third-party content. From a copyright perspective, a surface or a deep link does not usually constitute an infringement.The situation is more complicated when there is “embedding”, i.e. a link does not clearly link to a third-party website or a webpage, but rather the content which is being linked to is perceived to be part of the start page. This can involve inline links (as well as embedded links), which link to particular information on a third-party webpage that appears on the user’s screen as though it is integrated into the start page. In addition, there is framing, which involves the division of the webpage into several windows (frames), in which different websites or webpages are shown, both one’s own and also third-party sites and pages. The third-party content can thus be directly perceived by the user without them also having to leave the start page. More simply, it gives the impression that the embedded content belongs to the original website. There is no information regarding the third-party website. This is comparable with quoting without giving a source (Art. 25 CopA) or plagiarism, and probably infringes the copyrights of the owner of rights of the embedded web content. However, the issue has not yet been conclusively settled in Switzerland.