Copyright and Website Protection
Generally speaking, copyright refers to protection of literary works, dramatic, musical, sound recordings, architectural and artistic works from unauthorized use. Over the years the growing need and usage of the internet as a source for not only communication and entertainment but also information, advertising and marketing has given way to copyright protection of web pages and all its content. This includes the web design, written content, images, graphics, proprietary layout, linking strategies, scripting and the programming code it contains. Websites are now protected by copyright and any and all original information found on the internet, not included in the public domain, is protected by copyright. Most authors and owners permit copies to be made for personal use conditional upon request. Using of copyright material therefore, in the absence of this permission amounts to a copyright violation.
The Universal Copyright Convention and the Berne Convention are the two primary international conventions protecting copyright. However, due to discrepancies in both, the World Intellectual Property Organization Copyright Treaty or the WIPO Copyright Treaty was created between members states of the WIPO in 1996. Most member states have incorporated the provisions of the treaty within their national laws on copyright safeguards and in particular website protection. In the United States, the Digital Millennium Copyright Act (DCMA) was enacted subsequent to the WIPO treaty and provides in particular, higher penalties for copyright infringement on the internet.
The principal defenses for copyright infringement are ‘fair use’ and ‘public domain’. The doctrine of ‘Fair Use’ is based on the right to free speech under the First Amendment. Briefly, the doctrine permits limited usage of copyrighted material without prior consent from the owner, for example, if the purpose of use is for one for scholarship or review. Courts generally apply the four factor test to determine if ‘fair use’ would be an appropriate defense. This includes, purpose and character of the copied work, nature of the copied work, amount of the work copied and the impact on the owner of the work’s ability to exploit his work. The ‘fair use’ defense applies even to copyright infringement on a website. The case of Kelly v. Arriba Soft Corporation illustrates this point. The Court found that Arriba Soft’s (a search engine company) use of Kelly’s (commercial photographer) thumbnail images on their search engine satisfied the four factor test and amounted to fair use as it did “not harm the market for Kelly’s images or the value of his images”.
The second most commonly used defense is that of the ‘public domain’. A work is said to be in the public domain if no law establishes proprietary rights over it or governs its use. Copyright protection is granted for several years, after the expiry of which, the work moves into the public domain and may be copied by any amount of users without any immediate cost. It is critical to note that although the work may be easily available on the internet, it does not mean that it is in the public domain. The reality is that most sites are copyright protected. The user then is forced to make a decision whether his use falls under the ‘fair use’ defense or if he requires permission to the use the material on the site, in order to avoid copyright infringement.
According to the Berne Convention, copyright protection is granted immediately on completion of the text or design or material etc. to the person who created it. Registration of the work is thus not a requirement in order to claim copyright protection. However, if the creator wants to sue infringers from using his text, design, material etc. without his permission, he will be required to file an application to register his work with the United States Copyright Office (USCO) first.
The procedure to obtain this registration is fairly simple. An application may be filed with the USCO with a fee amount of $30 -35. The USCO will then determine the registrability of the work under copyright law and if there is no conflict or opposition, the work will be registered. The USCO maintains a database of all copyright registrations in the United States and allows users to search these records to prevent infringement of others’ ownership rights. Once the copyright has been granted, it is highly recommended that the user display a copyright notice on his website mentioning the year of the copyright, the name of the copyright holder and © symbol which is generally the standard to identify a copyright notice.
An issue that often arises in copyright law is the identity of the owner of the work when the work is outsourced to a non-employee to complete. As previously mentioned under copyright law, the rights of the work automatically transfer to the creator of the work. Therefore, in the absence of an appropriate clause in the contract of employment explicitly stating that the non employee or independent contractor does not claim ownership over the work created or that he assigns the same to the employer, the non employee or independent contractor obtains the rights to the work on completion of the work. For example, an individual or a company hires a website designer to design a website. The individual or the company will not obtain rights to the designs on the site in the absence of this clause in the hire agreement. Hence, it is crucial that such a clause be inserted in all employment agreements to give the employer the sole rights over the work created.
Given the increasing amount of copyright violations on the internet, the Creative Commons licenses came into existence. These licenses give the owner of a work the right to dictate to users, the means by which they may browse or view the sites and the material it contains, the rights to copy the work and the conditions under which they may do so and the rights and obligations by which they may distribute or sell the work. However, the primary benefit is the license attaches to the work and all those who come in contact with the work are bound by the terms of the license. For example, if an individual has a copy of the creative commons licensed work and gives the work to another individual, the second individual is bound by the same license and the owner of the work now has a license agreement separately with both individuals.
At present there is no international registration and protection for copyright in the entire world. Copyright protection is still based on national laws of each country and members states of international Conventions. With copyright infringement so widely prominent on the global internet, there is mounting concern that the existing laws are insufficient to manage this predicament.