A Liberdade de Navegação na Internet: Browsers, Hyperlinks, Meta-tags

• Autor(a) principal: Pereira, Alexandre Libório Dias
• Data de Publicação: 2002
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10316/28787
• topic: sociedade da informação; motores de pesquisa; hiperligações; direitos de autor

The Freedom of Navigation on the Internet (Browsers, Hyperlinks, Meta-tags). Is the Internet ruled by mare clausum other mare liberum principles? This paper that has supported the communication presented to the II Journeys on Law and Internet that took place in Coimbra addresses this question focusing the concerns placed by search engines, hyperlinks, and meta-tags to the system of exclusive rights. To begin with, search engines are analysed as possible objects of exclusive rights, on one hand, and as possible means of infringement of such rights, on the other hand. First, search engines may be protected as computer programs under special Copyright Law, but they cannot be granted patent protection. Moreover, it’s argued that the search result of the use of search engines is capable of protection under database copyright law as well as under the database sui generis right provided by special legislation. Second, search engines, namely browsers and hyperlinks, can constitute infringement to copyright law, in special the right of reproduction, if they do not comply with the requirements of the European directives on electronic commerce and copyright in the information society; the same applies, mutatis mutandis, to the infringement of the legal protection afforded to conditional access services. Finally, search engines can also be used to infringe personal data and privacy law, and they may lead to marketing mal practises of unfair competition. Then, meta-tags place specific concerns to trademark and unfair competition law. This paper address these concerns considering how, in comparative case-law, the use and sale of trademarks as meta-tags as been deemed to be infringement to trademark law and unfair competition protection in some cases, and how it has been considered to fall within the concept of free and fair use in other cases. Finally, it attempts to frame the legal relevance of the use and sale of trademarks as meta-tags in Portuguese law, in particular trademark, unfair competition and advertising law.