by Craig S. Hilliard
In this day, virtually every successful business has a presence on the internet. The importance of a website to a company’s marketing strategies, its product sales and its overall image cannot be understated. Yet, many businesses often neglect to take steps to protect the content on their website. They seem to forget that as easy as it is to place content online, it is even easier to copy it without permission. Digital technology has made it enormously simple for one individual to instantly become a large publisher of information. All it takes is a laptop computer and a broadband connection, and one person can disseminate copyrighted, or copyrightable, material across the boundless landscape of the Internet. This makes policing infringers a very difficult and expensive task. For large corporations like Microsoft, that cost is a necessary part of doing business in this day and age. For small businesses, however, that cost is prohibitive. This makes it even more important for copyright owners to develop (and execute) a plan to protect their websites before any publication or disclosure.
What are the copyright issues raised? First, who owns the copyright in the web site? If you hire an outside consultant to develop the site, you may run into troublesome issues over ownership if you don’t plan ahead. The web site developer may claim an interest in the work as a compilation or in the underlying content itself. Remember, the owner of the work under copyright law is the creator of the work, and not necessarily the person who paid for the work. If one of your employees develops the web site at your direction, it will almost surely be considered a work-for-hire and you will own it. However, someone outside your business will likely be considered an independent contractor, and therefore you should have a signed agreement designating the web site as a work made for hire. That agreement should also contain an assignment of all copyright interests in the web site (in case a court disagrees that the work is done for hire).
In any event, you should apply for a registration for your web site. You should do it immediately (or at least within a month or so of the introduction of the site on the web) to protect your ability to seek enhanced damages and attorneys’ fees in the event of infringement. If it is possible, a single registration is recommended for all of the elements of the web site. What happens if you continually update your site? The U.S. Copyright Office offers what are called "group registrations" that may give web site owners a less expensive and less cumbersome alternative to separate registrations. The three applicable group registrations available are for updates to automated databases, serial publications (defined as works which are intended to be issued in successive parts bearing numerical or chronological designations, such as the January issue of a trade publication), and daily newsletters (which requires that publication occur at least twice a week). The Copyright Office has deposit and timing rules for using the different group registration methods, so those rules should carefully be consulted to choose the right one for your needs.
In addition to taking the steps necessary to protect your original website content, you should be aware of other issues raised by the publication of material on the internet. Many web sites are going to be compilations of data or other information that may itself be copyrightable. By definition, a database is a compilation. Those of you who place content online should know that to the extent it is a compilation, anyone else is free to use the material contained in that compilation as long as the new work does not feature the old material in the same selection and arrangement. Copyright protection of compilations is thin under current law.
Moreover, there may be separate authors of the contributions to a collective work (for example, the different chapters to a trade publication on the internet). Usually, the publisher of a collective work has the right to use the components of the collective work only as part of the collective work. The rights to use the individual chapters stay with the author. Freelance writers have challenged the distribution of their articles over the internet despite old agreements which give publishers broad distribution rights. You should get appropriate warranties from anyone providing you with the work of other authors and take other steps (such as securing promises of indemnification) before publishing the works of others on your website. With the global reach of your website, the financial consequences of not doing so can be devastating.
Finally, one of the important "exclusive" rights of the copyright owner is the right to prepare derivative works, for example, the television program based on the book, or the sculpture based on the photograph. In the world of the web, the derivative work may be the software program that is modified to perform an additional function, or a graphic image that incorporates a preexisting image. The advent of new digital technologies makes it stunningly easy to modify original works of authorship, through the simple process of downloading and uploading information. Your web site should include specific warnings to people who visit the site that the material is not only copyrighted, but that you maintain the right to make derivative works based on the preexisting material at the site.
Craig S. Hilliard is a shareholder and member of the Litigation Group of Stark & Stark, 993 Lenox Drive, Lawrenceville. For more information, please contact firstname.lastname@example.org. www.stark-stark.com