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Intellectual property in websites: ownership and protection

This guide is based on UK law. It was last updated in September 2008.

Overview

We all have ideas, and some ideas are worth exploiting to make money. We will not want others to copy these ideas. That much is fairly obvious. However, ideas cannot be protected as such; only the expression of ideas can be protected. Different types of ideas can be protected in different ways, depending on how they are expressed. This intellectual output and the protection of it is known as intellectual property, a collective term for different types of asset including copyright, trade marks, patents, design rights and others. These assets are intangible, but can be very valuable since they enjoy legal protection.

There will be a number of intellectual property rights which exist in your website. Any logos or branding are likely to be protected by registered trade mark rights or the law of passing off. There will also be database rights in any database underlying your website. However, most of your website, including the text, design, graphics, data, website layout and any music, broadcasts, software and images on your website, will be protected by copyright.

Copyright

In the UK, copyright vests automatically in a work, provided that it satisfies certain criteria. Some other countries have registration or deposit procedures which must be followed for the author to benefit from full protection.

For a work to qualify for copyright in the UK, it must be 'original'. This is not an onerous requirement to satisfy. The work does not have to be novel or unique. It just has to originate from the author i.e. it must not be copied but must be created as a result of some skill, labour and judgement. The work must also be 'recorded in writing or otherwise' but the method of fixation is irrelevant and could even include computer memory.

When creating your website, you need to consider whether you are the owner of or have the right to use all of the materials that you wish to include in the website, e.g. data, text, photographs and software. If you are not the owner of the materials, you will need a licence from the copyright owner in order to use them, alter them and include them in your website.

Employees and sub-contractors

If your employees are creating your website then, in the absence of any agreement to the contrary, copyright automatically vests in you as the employer. This is not the case if you are commissioning contractors (e.g. external web developers) to create your website. This is a common misunderstanding. In the absence of agreement, the contractor will own the copyright in whatever he creates.

Accordingly, you should agree in advance that the copyright in anything created by the contractor for you will be owned by you, so that you are able to do what you want with it. You might have paid someone to produce pictures for a brochure – if you are granted a licence to use the pictures in the brochure, this does not necessarily mean that you can use the pictures on your website.

Infringement of copyright

Copyright in something is infringed if it is reproduced in any material form. Therefore, you risk infringing copyright if you reproduce someone else's website content on your website without permission. Similarly, your copyright might be infringed if someone else reproduces your materials on their website without permission.

Copyright protection does not grant the owner a monopoly in something, it only prevents copying. It is not copyright infringement if, for example, two people design exactly the same logo completely independently without copying the logo of the other person. Both parties will have copyright protection in their own logo. Therefore, to successfully prove copyright infringement you would first have to show that the other party had access to your materials in order to copy them. This is obviously easy to show where it is freely available website content which has been copied.

Whether copyright has been infringed also depends on what has been reproduced. If a work has been copied completely and the infringer cannot prove that he has created the work independently of the copyright work, then infringement will be easy to prove. However, proving copyright infringement becomes more difficult when the work has not been copied completely. In such instances, courts tend to focus on quality rather than quantity, i.e. whether what the alleged infringer has copied is the most valuable, original part of the work.

On the internet, copyright can be infringed in several different ways. Some of these methods are dealt with below.

Hypertext links

A hypertext link joins one website to another website. It is not clear whether linking from one website to another website infringes copyright in the linked website. It is possible that anyone whose website includes links could be held responsible for any page to which it is linked, even if this link is indirect and involves passing through unconnected parties. Ideally, you should ensure that, if you wish to include a link to another website, you have permission from the owner of the website to do so. A linking agreement could be used for this purpose.

For many sites, this may not be practical. Simple steps can be taken to minimise your risk. One such step would be to link only to the home pages of other sites (since some sites object to links bypassing their 'shop front'). Also, if linking to other businesses, do not display their brand next to the link on your site unless you have the brand owner's permission to do so – you risk infringing their trade mark. A simple disclaimer on your site could help – for an example, 'see our disclaimer'.

If your site is developed by another party, your web development agreement should clarify that links should not be added by the developer without your consultation – to give you the opportunity to seek permission from the other site. There is a risk that you become liable for something your web developer has done without your knowledge.

Many of the disputes which have arisen to date have involved sites that are 'scraping' the content of others, by extracting the data, reformatting it and making it available on their own web sites. For example, news aggregation services which harvest the headlines of news web sites and travel or ticketing services which trawl the databases of providers are asking for trouble if they operate without permission.

In July 2008, Ryanair began a screen scraping lawsuit in the Irish Courts and Ryanair won an injunction in the German Courts against a tour company that was screen scraping its website (see both stories in OUT-LAW News).

Framing

Framing allows a website to be displayed in a smaller window on another website. It is feasible that if someone frames a website without the consent of the website owner then that person may be liable for copyright infringement by publishing the work. Again, you can play safe by seeking permission from the owner of another site.

Downloading and distributing software

Software sold on a website is often sold on a 'try before you buy' basis. It is therefore easy to download the software and distribute it. Although there has not been a case in the United Kingdom on this point, it is likely that if such a matter reached the UK courts, they would follow a decision of the Australian High Court, which decreed that downloading and distributing software from the internet without permission constitutes copyright infringement of the software concerned. Software is also often provided to download with a licence, and distributing the software is likely to amount to a breach of the licence terms.

Where you are making software available to download from your website, subject to licence terms, those terms have to be provided to the user. In the US, a court held that Netscape's licence agreement was not binding on users who had downloaded free Netscape software. This was because users were invited to read the terms of the licence but they were not brought to the user's attention, and there was no requirement for express consent to the terms.

You will want to include a 'click-wrap' agreement, which clearly displays the licence terms to the user and which requires the user to actively indicate acceptance of the terms by clicking on "Yes" or "I accept" before the software can be downloaded. Otherwise, there is a risk that the terms could be held not to be binding on the user.

Internet patents

Software is protected by copyright in Europe and not by patents. However, it is arguable that, provided the software is new, involves an inventive step, is capable of industrial application and has a technical effect, it could qualify for patent protection.

In a case involving IBM, the European Patent Office held that the software on diskettes is patentable provided that the software has a technical effect when run.

Software will have a technical effect if it has an effect on the way that hardware or apparatus operates, or the way that data is processed, or it leads to a technical difference in the way that existing systems work.

The US Patent Office is certainly more lenient than patent offices in Europe when it comes to deciding what is patentable. The US permits patents for both software and business methods. Amazon.com was granted a patent to protect its 'one-click' technology and Priceline.com was granted a patent for the business model surrounding its reverse auction web site (where the buyers say what they want and how much they will pay; the seller's then compete for the business). A US court has granted an injunction in Amazon's favour to prevent infringement of its patent (although a number of the patent's claims have subsequently been rejected on re-examination by the US Patent and Trade Mark Office) and Priceline.com has successfully settled proceedings against Microsoft alleging infringement of its patent.

Conclusion

Intellectual property rights are a business asset, and are often the most valuable business asset. Any business presently trading or considering trading on the internet needs to check what intellectual property rights it owns and ensure that it is fully protected.