Legal aspects of Webdesign: Copyright

One of the most visible rights that the author of a work has, is the copyright over his work. Almost everything that is published on the World-Wide Web is copyrighted. In general, a work is copyrighted when it is created, and it is not necessary to apply for copyright. Some countries may, however, give extra protection to works that are registered. In any case, when a work is copyrighted, others may not use or redistribute the work without the permission of the author. This permission is typically called a license for the work.

For Web designers, it is important to know under what circumstances someone else's work may be used in their own work. For example, images in public archives are often copyrighted, so it is necessary to find out about the licensing conditions first. This type of use is very straight-forward and does not differ much from the situation in the real world: when you write a book, a newspaper or a Website, you always need permission to use someone else's work in yours. However, the new technology on the Web has created many possibilities which were never foreseen by copyright law.

Copyrighted works

When is a work copyrighted

Most countries in the world have copyright laws which are based on the international Berne convention. This treaty states that any work is copyrighted at the moment of creation. A work has to be original and needs some form of artistic expression, but these requirements are easy to fulfill. Unless a work is really short (such as a single sentence), or is purely mechanical (such as a list of names), it is copyrighted.

In the USA, before adopting the Berne Convention, authors had to register their work with the Copyright Office before they could get copyright protection for their work. This is now no longer true, but it may still be beneficial for US authors, as registering allows them to sue for punitive damages, instead of only for actual damages.

The copyright on a work is valid until a certain period after the author's death. The exact length of this period depends on the country, but can be up to seventy-five years. When the author is unknown, this period starts when the work is first published. The length of this period has changed several times in history, and this has affected the status of many old works. So, when using an old work on your site, don't just follow the current rule, also check what was the law at the time the work was created. And note that if you use a photo of a really old work, this photo is copyrighted independently of the work on the photo.

The copyright notice

It is not required to add the famous "" symbol or a text such as "Copyright by author" to copyright the work. These serve only as indicators to others that the work is indeed copyrighted, so that no one can later claim he could not have known this. An appropriate notice on a Webpage would be something like:

Copyright year by author. All rights reserved.

The year should be the year of creation, possibly with the addition of the year it was last modified. The author can be either the maker of the work, or the company or institution who owns the rights. In many plain-text documents, the symbol cannot be shown, and the string "(c)" is used instead. This string is not an officially-recognized indicator, although it is by now so common that it probably would be accepted as such if there would ever be a dispute about a work's copyright status. To be on the safe side, you should add the full word "Copyright" to the "(c)" string.

Licensing: Making your work available to others

The rights of a copyright holder

The rights of the owner of a copyrighted work are typically formulated differently in different countries, but basically he has the right to make copies of the work and to offer the work to the public. When he distributes a copy, that specific copy may be redistributed by others without needing further permission. This is called the "first sale doctrine" in the USA, and "exhaustion" in most European countries. So, it is legal to resell a book, but not to make your own copy of the book and sell that.

The owner can grant other people some or all of the rights he holds on the work. This is called "licensing". A license can be very specific ("Newspaper X may publish photo Y in tomorrow's edition.") or very broad. By putting your work on the World-Wide Web, you implicitly give everyone in the world a license to download and view your work on their computer. However, this license does not cover things like putting the work on their own Website or printing it in a book. If you want to do this, you will need to ask the owner of the Website for permission first.

Choosing a license

It is important to decide what other people may do with the content you put up on your Website. Can your icons and images be used on other sites as well? May others incorporate your video or audio streams on their pages? And what about those scripts and Java applets you created?

If you are a hobbyist, it may not matter much what other people do. You may even feel flattered because your work is apparently appreciated so much that others want to use it. But if you've invested a lot of time and effort in creating images or programs, it may seem as if others are stealing that effort without recompensating you. In that case, it is worthwhile to make your license more explicit. Simply create a Webpage where you explain what may and what may not be done with your work. This does not have to be three pages of legalese, a simple statement such as "All images on this site may be copied and used without restrictions, as long as appropriate credit is given." already suffices as a license.

For programs, there are many standard licenses available. The advantage of using such a license is that everyone knows what it means, and which rights they have for using the program. The most famous one is probably the GNU General Public License. The GNU also has a comparison of the most popular standard licenses, which may be useful in choosing which one you want to use.

Using someone else's copyrighted work

As explained earlier, using someone else's copyrighted work is not permitted without a license. If the work does not indicate that it is copyrighted, it does not mean there is no copyright, it only means you will have to contact the author to find out what you may do with it. Most Websites these days have explicit licenses, which list in detail what is and what is not permitted.

Pay particular attention to sites that offer collections of images, sounds and the likes. Most "icon archives" have a large number of icons from various sources, and offer these under their own license. However, each individual icon is copyrighted by its creator, and unless this person has given the icon archive a license, the archive is not permitted to make that icon available. So do not immediately trust that an icon you find on a public archive can be used freely.

Borderlines: inlining, framing and front-ends

On the World-Wide Web, many techniques are available to use someone else's work without making your own copy first. It is not always clear whether this is permitted under copyright law, but if the other person suffers damages because of this, it is almost always possible for him to sue you for it.

Inlining images and other resources

When someone has an image on his Website, it may be tempting to copy it to your own site. However, this is a clear breach of the rights of the owner, unless he permits it. To overcome this problem, many people simply refer directly to the image on the other site in their own Webpage. No copy is made, and the owner still has complete control over the image. But the appearance to the reader is the same as when a local copy was made: the image is used in a Webpage.

Whether or not this is copyright infringement is open to debate, although the fact that the image is used in another work can be seen as a copyright infringement. Re-using someone else's work is not permitted under most countries' copyright law. In addition, this action will cause extra data traffic on the owner's server. When he has to pay by the megabyte for this traffic, this extra traffic can be interpreted as damages, for which the person who linked to the image can be held responsible.

This type of activity can be detected by periodically checking your server's logfiles. If an image is downloaded much more than the pages it appears on, that's an indication that the image may be linked to from elsewhere. The referrer log may also be of help, as this log indicates which Webpages refer to the downloaded image.

Framing someone else's Website

When frames were introduced, it soon became clear that it was now possible to not only include someone else's images in your own Webpage, but entire Websites as well. This feature was quickly misused to build sites where advertisements were shown in one frame, and content from other sites in another. Thus, the site owner profited from the other sites' content without much effort on his site. This has been the cause of many lawsuits.

The arguments on whether this is copyright infringements are mostly the same as with including someone else's image on your own site. It is slightly harder to detect, as there is no way to make a difference between normal links from other sites, and links from inside frameset documents.

Front-ends to someone else's database or search engine

On the Web, databases and search engines can be used with simple HTML-based forms. It is extremely easy to copy the HTML code for these forms to your own Webpage, so that others can access the database directly from that page. This makes it possible to provide pre-selected queries (for example, an interface to Google Groups which only searches the HTML authoring newsgroups, or a front-end for Altavista with the language set to Dutch).

However, the database that is being used may be copyrighted or protected by database rights. In that case, this type of action is only permitted when the site owner permits it. Most search engines do not mind such a front-end, as it only means more visitors to their site who will see the advertisements on the results page.

In the countries in the European Community, there is now a Directive which provides specific protection for databases, regardless of the copyright status of the database. It is questionable whether a phone book is copyrighted, as it is a simple collection of facts, without any original arrangement or presentation. However, it most certainly fits the definition of a database under this Directive, and it is therefore not permitted to re-use the information therein without permission.

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