Websites are full of creative ideas, business branding, software, applications and other valuable assets. They are an investment in time, money, corporate strategy and business objectives.
Intellectual property (IP) is a legal concept which refers to creations of the mind for which exclusive rights are recognized. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright, trademarks, patents, industrial design rights, trade dress, and in some jurisdictions trade secrets.
Intellectual property collectively brings the website alive. Each different technical component across the website raises legal issues on who owns it, has the right to use it, for how long and where.
This article looks at the different technical elements within the website, intellectual property licensing and other website IP issues.
Web IP technical elements
Which technical elements constitute Intellectual Property (IP) in the design, development and implementation of websites?
Here we set out a list of examples to help website professionals identify what website IP needs protecting.
1. Domain name/URLs
2. Browsable content
- In-line and linked graphics
- Streamed sound & video
3. Hidden content
- Visible programming
4. Invisible programming
- CSS, PHP, PERL CGI scripts, XML schemas, database configuration
- Underlying third-party programs
- Database engine
- Content management system
- Operating system
5. Executable content
- Java applets, ActiveX controls
6. Downloadable content and programs
- Graphics, sound and video
- Screen savers, programs
7. Interactive facilities
- E-mail, fax, or SMS transmission; response forms
- Discussion forums
- Content customised for the user
- On-line ordering processes
8. External links
- Other sites/other content (linking, framing)
- Newsgroups, archives etc
Table of risks
Copyright and database right
A database may be protected by copyright as a literary work and/or database right. This protection can apply to both paper and electronic databases.
For copyright protection to apply, the database must have originality in the selection or arrangement of the contents and for database right to apply, there must have been a substantial investment in obtaining, verifying or presenting its contents. It is possible that a database will satisfy both these requirements so that both copyright and database right apply.
There is no registration for database right - it is an automatic right like copyright and commences as soon as the material that can be protected exists in a recorded form. However, the term of protection under database right is much shorter than under copyright. Database right lasts for 15 years from making but, if published during this time, then the term is 15 years from publication.
Many databases are a collection of copyright works, such as a database of poetry from the last fifty years where each poem will also be protected by copyright. So people compiling databases need to make sure that they have permission from the copyright owners for use of their material and people using databases need to be aware of the rights of the owners of underlying works as well as database right owners.
You must decide upon the scope of the user’s right to view your website’s content. If not done the user will access the site under an implied licence, the scope of which will be uncertain.
For example, will the user be allowed to copy or download content from your website? If yes, for what purposes, and are they allowed to pass content to a third-party? Copyright & database notices should set out your company’s limits.
Access to valuable content should be governed by online terms and conditions which users should read and accept before accessing. Carefully consider the process of reading and acceptance to ensure that the terms and conditions are legally binding.
Read our articles on Electronic Commerce to establish what you need to do at the website’s design and build stage.
When licensed-in material is used, don’t assume that material licensed for hard copy can be re-used automatically online.
Many websites are on-line database subscription services with a web front-end.
In Europe, the database right protects them. Even conventional websites with no underlying database engine may have sufficient structure & investment to protect elements by database right as well as copyright.
Confidential data, privacy and similar rights
Take care to protect confidential information and privacy. English breach of confidence law has developed to encompass broader notions of privacy, & the laws of other countries with more restrictive laws, or embodying publicity & personality rights, or with broader moral rights may have to be taken into account. This area also encompasses Data Protection.
Trading rights in the website
Trade marks and similar rights
Protect your brand names used online and set out their use in the business's trade mark manual. The website’s legal boilerplate should include notices drawing attention to the website owner's trade marks rights (registered and unregistered).
The trader’s rights to prevent another from passing off, or infringing its trade marks, or (in some countries) unfairly competing, apply to websites. Trade mark cases are advanced and have addressed issues e.g. domain names and meta data.
Rights in technical elements
Unlike a brochure or hard copy advertisement, a website is a complex combination of visible and invisible elements. These elements are not static, but dynamic and interactive, driving the real-time processes which are an integral part of the user experience, such as the path that a user takes through the ordering process.
Copyright and similar rights
A website’s complexity raises further aspects of intellectual property rights, especially those relating to the licensing of computer software. For example, a downloadable game’s publisher may require the site owner to ensure that the user accepts the software licence’s terms.
The website designer may wish to retain rights in the underlying programming that drives the website. Any proposed distinction between content & programming, and between programming that should belong to the website owner & that which should belong to the designer, requires careful thought. Dividing rights inappropriately can leave the site owner in severe difficulties if it wishes to move the site to another platform, or retain a different designer to improve the site.
Intellectual property licences
The organisation must obtain a fully negotiated licence from the relevant copyright and/or trademark owner(s) before using copyright works and/or trademarks and logos owned by 3rd parties on its website, or indeed for any other purposes.
A licence in the form of a short letter, signed and returned by the copyright/trademark owner will be sufficient for less important/extensive third party copyright/trademarks.
Where notices should apply?
Copyright notices should be applied to specifications, manuals, design documents and computer software, and to the content on the website as well as the website itself.
- Display the Copyright Notice ‘above the web page fold’ so that it is clearly visible when the page is displayed. Don’t let the visitor scroll down the page to view it!
- Ideally, the copyright notice should be placed on every page of the website, but certainly on the home page as a minimum.
- However, if pages deep in the website’s structural hierarchy can only be accessed through the home page, a copyright notice placed here would be sufficient.
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