Creating a website
- 1. Introduction
- 2. Different types of protection for a website
- 2.1. Protecting the content of the website
- 2.1.1 Original content protected by general copyright
- 2.1.2 Original content protected by a specific form of copyright
- 2.1.3 Protecting database content which has required substantial investment under a (specific) sui generis right
- 2.2. Protection of a website as a "support"
- 2.2.1 Protecting the website as a global work under the general copyright regime
- 2.2.2 Protecting a website as an original database by copyright
- 2.2.3 Protecting the website as an audiovisual creation
- 2.1. Protecting the content of the website
- 3. Creating a web site: enjoying rights and respecting the rights of third parties
- 3.1 You create the website yourself
- 3.1.1 Do you have the right to use the editing software?
- 3.1.2 Distinguishing the elements that you have created from those created by third parties
- 188.8.131.52 Creating a website without using elements created by third parties
- 184.108.40.206 Using third parties' elements in your creation
- 3.2 You entrust a third party with the website creation
- 3.2.1 Creation of the website by your employees
- 3.2.2 Creation of the website by an external creator
- 220.127.116.11 The creation contract
- 18.104.22.168 The intellectual property aspects
- 22.214.171.124.1 Distinguishing the elements created by the external creator from those created by third parties that the external creator wants to re-use
- 126.96.36.199.2 What about sharing out the rights between the client and the external creator?
- 3.3 The website is created by several authors
- 3.1 You create the website yourself
- 4. Going online
- 5. Concrete answers to your questions
- 5.1 May I scan a picture in order to put it on my web page?
- 5.2 May I scan an image (drawing) in order to put it on my web page?
- 5.3 May I scan a text in order to include it on my web page?
- 5.4 May I copy or download a work (image, logo, icon, picture, text, video sequence, musical file) from a website in order to include it on my own website?
- 5.5 May I scan an image or a picture from an analogical medium or copy an image or a picture on a digital medium in order to include it on my website, in a modified form?
- 5.6 May I place musical files (MP3 for example) on my website at the disposal of other Internet surfers?
- 5.7 If there is no Copyright mention on a work, may I copy it freely?
- 5.8 What about the mention "Copyright free" of "freewares" or "sharewares"?
- 5.9 Before using a Hyperlink to link to another website, do I have to obtain the prior consent of the website owner?
- 5.10 May I enjoin someone from making a hyperlink to my website?
- 5.11 What sanctions are available in the event that copyright is not observed?
- 5.12 How can I protect the idea for a website?
- 5.13 How can I prove my rights?
Intellectual property rights do not include a specific type of protection for websites. Therefore, a website has the particularity of being covered by different, often complementary, types of protection.
In order to simplify the analysis of these different types of protection, we will consider them on two different levels: the content and the support.
A website is a structure that can be protected by copyright as an original work, or in some cases by database legislation. The superimposition of various types of content: images, music, logos, texts, sounds, videos, software, databases, means that the work may be protected either by general copyright or by a specific copyright dedicated to a specific type of work (such as software or a database).
These forms of protection apply automatically and exist without any formalities (such as a deposit or copyright notice). Nevertheless, a copyright notice including the name of the author or the owner of the rights could be useful in order to prove the ownership of the rights in the event of a dispute.
On a website, different original content may be individually protected by copyright. This will be the case for the texts, images, pictures, logos, and software that are included on the website.
Moreover, when the website is (or contains) a database, the content of this database, even where is not original, may be protected by the sui generis database right
Traditionally, copyright protects any artistic or literary works, such as texts, images or music.
Among the different types of intellectual creations which can be protected by copyright, we notably find:
- texts of any nature (novels, short stories, poems, scientific or technical texts, manuals, etc.), regardless of their content, length, goal (entertainment, education, information, marketing, propaganda, etc.) or form (handwritten, typed, printed or electronic versions);
- pictures, independently of their support (paper or digital) or subject (person, landscape, current events, paintings in the public domain, etc.);
- images, virtual or otherwise, and whatever their type (drawings, acronyms, icons, logos, graphs, geographic maps, etc.);
- musicals, videos or audiovisual sequences, whatever their format or recording support may be.
To be protected by copyright, the work simply has to be original and expressed in a particular form.
Therefore, it is not necessary to accomplish any formalities such as filing with an administration or using copyright notices © (it is nevertheless recommendable to carry out such formalities for proof of ownership purposes). Protection arises from the sole fact of creation. Conversely, the mere presence of a copyright notice is not sufficient to imply the existence of copyright protection if the work is not, for instance, original.
Two conditions should be fulfilled in order to enjoy copyright protection:
This criterion has not been defined at the European level (except for databases or software). Therefore, different meanings and levels of originality exist, depending on the laws of the European Union's Member States.
Generally, in the continental European countries, a work is deemed original if it reflects the own personal creation of the author.
On the contrary, originality is defined differently in the United Kingdom, for example. The originality criterion is assessed considering elements of skill, labour, and judgement, and by verifying that the work is not a copy.
To be protected, the work must be materialized in a form capable of being appreciated by the senses. This condition should not give rise to any problems as regards works accessible online, since the mere fact of being accessible on the Internet implies that the work has previously been expressed in a particular form.
This condition implies that copyright does not protect either ideas (even if the latter are great or original), or methods or styles (even if original). Therefore, when creating a website, we can inspire ourselves by styles developed by others, provided that no formal elements are copied).
The owner of the rights is generally the author as a physical person.
When the work is created by an employee in the framework of his employment agreement, most of the Member States of the European Union provide that the employer is the copyright owner (this is the case in the Netherlands and the United Kingdom, for example). Nevertheless, the laws of some Member States establish that the employee remains owner of the rights unless an agreement provides for the contrary (this is the case notably in France, Belgium, Italy, Germany, Luxembourg and Portugal).
The author has two types of rights:
- economic rights (enabling the author to enjoy an economic profit from the exploitation of his work), which can be assigned and may be the subject of licences;
- moral rights (aiming to protect the integrity of the work, the relation between the work and its author and the reputation of the latter), which cannot be assigned (or only partially).
In summary, the economic rights are as follows:
- The reproduction right allows the author to prohibit or to authorize the reproduction of his work in any medium or form.
- The right to communicate the work to the public allows the author to prohibit or authorise the communication of the work to the public without the need for a material support. It encompasses public performances or communication through any technical means of transmission (such as transmissions by satellite, cable or electronic communication). Therefore, this right covers online transmission (Internet).
Besides the economic rights, the author also enjoys some moral rights, which reflect the link between the author and his creation.
The main moral rights are:
- The paternity right: this right enables the author to claim the paternity of his work, by deciding whether his name (or pseudonym) should appear on the work. Pretending to be the author of the work of a third party or communicating the name of the real author without his or her content are infringements of this right.
- The integrity right enables the author to refuse any modification of his work or any re-use of it in a new context (text that has been cut or summarised, modifying a picture using a filter or special effects).
In principle, economic rights are protected until 70 years after the death of the author 1 .
The term of protection of moral rights has not been harmonised in Europe. In most of the Member States of the European Union, moral rights enjoy the same term of protection as economic rights.
Nevertheless, in some countries, the moral rights remain even after the economic rights have expired (for instance in France, Portugal, Italy, Denmark, and for some types of moral right in Greece and Spain).
Databases and software are protected by some specific laws which differ in certain respects from the general copyright regime.
For an analysis of the protection of an original database by copyright, please read section II.2.B.
For an analysis of software protection, please read the already existing documents available on the IPR-Helpdesk website:
|Software Copyright Software Copyright and the Computer Programmer|
When the web site is (or contains) a database (original or otherwise) which has required a substantial investment, its content (whether or not original) may be protected by a sui generis right (specific to databases). Non-original content may be, for instance, non-original information such as a table of temperatures, phone numbers, etc.
A database is defined as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means" 2 .
The content of the database will be protected when it can be shown that there has been a qualitatively and/or quantitatively substantial investment in obtaining, verifying or presenting such content. .
The European directive does not define the concept of "substantial investment". Therefore, it is recommendable to consult a specialized lawyer as regards the current opinion of the courts of justice on this crucial definition.
The right owner is the maker of the database, defined as the person who takes the initiative and the risk of investing.
In the context of an employment agreement, the employer will generally be considered as the maker of the database.
The maker of the database has the right to prevent the unauthorized extraction and/or re-utilization of all or a substantial part of the contents of the database (or to give his authorisation in exchange for remuneration).
Therefore, this sui generis right has the main purpose of giving the maker of the database the right to prevent the information from being "stolen".
The web site as a whole may be protected by different means:
- Protection as a global work by copyright
- Protection as an original database by copyright
- Protection as an audiovisual work
These forms of protection may be cumulative.
The website may be considered as a global work which is protected by copyright.
Regarding the conditions of protection, the rights owner, the type of rights obtained and the term of protection, please read point II.1.A (although relating to the protection of original contents by the general copyright regime, the information is identical).
A website which is deemed to be an original database may be protected by a form of copyright specifically aimed at databases 3 .
The subject of the protection is the website as a database. Therefore, it is the structure (or "support") - and not the content - which will be protected. Nevertheless, the original content may be protected by copyright, please refer to section II.1.A for further information.
To be protected by copyright, the website must constitute a database. A database is defined as a "collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means" 4 .
Databases are considered original if, by reason of the selection or arrangement of their contents, they constitute the author's own intellectual creation 5 .
In order to fulfil the criteria of originality and be protected by copyright, the creator of the database must avoid two situations:
- making an excessively exhaustive database, as including nearly all existing data could exclude any originality in the selection (for example: a dictionary, phonebook,…).
- organising and classifying the database in too obvious a way in order to make the search function easier could rule out any originality in the arrangement (for example: a chronological or alphabetical classification).
The rights owner is normally the author as a physical person.
When a website (as an original database) is created by an employee in the framework of their employment, most of the Member States establish that the employer will be the owner of the rights to the database (originally or by an automatic legal cession).
National laws setting out such a regime either relate specifically to original databases (as is the case in Belgium), or apply to any type of creation protected by copyright (as is the case in the United Kingdom, Ireland, The Netherlands and Greece).
Some countries do not provide for legal assignment and therefore, in the absence of a contractual assignment to the contrary between the interested parties, the employee will remain the rights owner (for example, France).
The author of the database will normally enjoy exclusive rights of reproduction and communication to the public.
Therefore, any reproduction (in any form), translation, modification or distribution requires the author's consent (or if he has transferred it, the consent of the present rights owner).
It is important to highlight that the subject of protection is the original database as a structure. Therefore, if the database is protected by copyright but not its content (in the case of non-original content), the author will only be able to prevent the reproduction of the selection of the elements (the structure) and not the reproduction of the individual pieces of data contained in the database.
The author will also enjoy moral rights.
Economic rights are protected until 70 years after the author's death 6 .
The term of moral rights protection has not been harmonised in Europe. In most Member States, the term of protection of moral rights is the same as the economic rights.
Nevertheless, in some countries, the moral rights remain in force even after the end of the economic rights (this is the case in France, Portugal, Italy, Denmark and for some forms of moral right, in Greece and Spain).
Websites are becoming ever more sophisticated. They are not limited to texts or images but may contain animated sequences, and even small films.
Some countries (such as France and Belgium) have established a specific regime of protection for audiovisual creations. The definition of the audiovisual work may differ according to the country, but a succession of animated images is generally required. A sound element is not always necessary, because it is the "succession of images" themselves which is usually considered.
Generally, protection as an audiovisual work may cover computer games, CD-Rom multimedia presentations and, in particular, cartoons, animated series and films.
Some websites contain games or animated sequences, while others may be presented entirely as an interactive game or long animation. In general, the audiovisual element must run through the website as a whole in order for it to be considered an audiovisual work. For example, a website which only contains some audiovisual sequences, in addition to a mainstay of texts or images, will not be considered an audiovisual work.
If a website is assimilated to an audiovisual work, specific rules will apply in addition to the general copyright regime. These rules are not harmonised in Europe and therefore, it is important to refer to the national laws applicable to your particular case.
Generally, the different persons having contributed to the audiovisual work will be considered co-authors.
In principle, this will be the case for the director of the work, the scriptwriter, the author of any text adaptations, the graphics or the musical compositions. These persons are presumed co-authors of the new work, or in other words, of the website.
Moreover, in the framework of audiovisual works, the legal assignment of the co-authors' economic rights in favour of the producer usually applies. The producer is generally defined as the person who takes the initiative and the responsibility of producing the work. In return for the financial risk and investment, the producer will enjoy the economic rights by assignment. However, the producer will have the duty to exploit the work, to provide accounts, and to remunerate the authors of such assigned works.
However, the legal presumption of assignment of rights in favour of the producer does not concern, in principle, the authors' moral rights which still have to be respected by the producer.
Generally, if a work could be considered an audiovisual work, the parties are advised to enter into an agreement establishing their respective rights and duties.
It is important to realise that the presumption of assignment will exist by law and independently of any explicit contractual assignment.
Drafting contracts concerning the production and direction of a website which could be assimilated to an audiovisual work, requires the assistance of skilled lawyers.
When deciding to create a website, different choices must be made. In particular, it is possible to create everything yourself (or through your employees) or to ask for the help of an external company (or person).
The decision of whether to create the website yourself or to assign this task to an employee or an external person will influence the ownership of the rights.
It is important to realize that all the different elements created by third persons cannot then be included in the website without the consent of the rights owner.
In order to create a website, you will probably use editing software. To upload the website onto the provider's server, you will also have to use software. In order to consult your website, you will have to use a browser. Do you have the right to use these different types of software? In other words, you must ensure that they are not illegal copies.
This may seem obvious but it is important to bear in mind that software is protected by copyright. Buying a copy of the software does not mean that you own the related intellectual property rights. In practice, the authorisation of the owner of the rights to the software is required in order to use it. The authorisation may take the form of a licence, which is generally annexed to the material support (a CD-ROM or floppy disk) containing the software.
From an intellectual property point of view, it is essential to identify the elements that you have created from those created by third parties and that you want to use on your website.
Indeed, in principle, you are free to use any elements (music, text, images…) that you have personally created because you are normally the owner of the rights to such elements ( Section A).
Conversely, any element protected by intellectual property and which has been created by a third party cannot be freely used, unless an exemption applies. Indeed, in order to incorporate it in your website, you will need to obtain the prior consent of the right owner. Without this consent, you risk being sued ( Section B).
As the author, you will be the copyright owner if your creation is original. The work is considered original if it reflects your personality. Moreover, to be protected, the work must be expressed in a particular form (a simple idea which is not expressed in a particular form cannot be protected). You can use the elements that you have created freely: music that you have composed and interpreted, your holidays pictures, …
Nevertheless, in some Member States there are, beyond copyright, other types of rights that must be respected. For example, you will have to respect the " droit à l'image" (the right to personal portrayal or to one's own personal image), and the right to privacy. For example, according to the right to one's own image, it is forbidden to include the picture of a person on a website without their consent. In addition, there exists a legal framework which must be respected if you wish to include personal data processing on your website, through cookies for instance.
Moreover, some sensitive or illegal information cannot be put online, such as revisionist articles or child pornography.
When you create an informal, commercial or other type of website, you have to respect third parties' rights (copyright, right to one's own image, trademarks) on the each of the different works (text, images, pictures, musical sessions, videos, etc.) that you include on the website.
The possibilities provided by new technologies have made exploiting works owned by other persons much easier. For example, the copy/paste function, printing the thousand pages of a document, the possibility of scanning works, the use of search engines which allow a picture or image to be found very quickly etc. … Moreover, while a large number of acts are contrary to copyright (reproduction, modification) only a few entail a possible law suit. Therefore, people may think that such rights do not have to be respected or do not exist and that everything is permitted risk-free!
Of course, this is not correct. Not everything is permitted, even on the Internet. A number of decisions given by the courts establish that copyright, trademark rights and the right to one's own image exist on the web and that acts contrary to them will be penalised.
Beyond the classical elements protected by the general regime of copyright (texts, images, musical sessions…) and by the specific protection for databases and software, there are other rights that can limit your freedom to choose the elements to include in your website.
For instance, trademark law limits the use of a trademark owned by a third party. Therefore, you may not include this trademark in your website without the authorisation of the trademark owner.
To include a picture of a person can be contrary to his right to his own image. Therefore, that person's prior consent must be sought.
The duty to respect a third party's privacy also limits the information that can be put online and the possibility of processing personal data. Moreover, including illegal documents such as racist publicity or other types of offensive items should be avoided.
In order to be allowed to include on your website works to which a third party owns the copyright, you must obtain their prior consent.
Therefore, you must answer the following 3 questions:
- Who is (are) the copyright owner(s) for this work?
- Is the author still the rights owner? Has he transferred them? Has the copyright expired (generally 70 years after the author's death) ?
- Does a collecting society manage the author's rights?
The copyright owner is generally the physical person who has created the work. This person is the original rights owner. The name provided on the work is presumed to be the name of the person who owns the rights.
If several persons have created the work, the copyright will be owned by all of the creators. A person is considered a co-author if his contribution to the work expressed in a particular form is original (this is not the case for a person who has only provided ideas or encoded technical data). Therefore, the authorisation of each co-author is required.
It is possible that the author is no longer the owner of his (economic) rights. This will be the case if he has assigned his rights. It is also possible that he has granted an exclusive licence to a third party. This person will therefore become the right holder. Consequently, you should ask the author if he still owns the rights and if not, who is the right holder.
In the case of software protection, there is a legal presumption of assignment of an employee's rights in favour of his employer when the software has been created in the execution of his duties or following the instructions given by his employer 7 . Some countries have also organized a similar presumption of assignment for original databases.
Even if the economic rights have been assigned, it is important to take into account that the moral rights may still remain with the author. In this case, it would be interesting to obtain a renunciation of his moral rights in order to avoid any conflict. In effect, moral rights cannot generally be assigned.
The author who does not want to manage his rights himself, may ask a collecting society to do so on his behalf.
In this situation, the user has the advantage of only having to deal with one party to negotiate the rights, which is very useful if he wishes to use a large number of works. Therefore, in the absence of a copyright notice indicating the name of the author or of the right holder, a person wishing to use a work can carry out a search in order to check if the work appears in a collecting society's catalogues.
If you entrust one of your employees with the creation of the website, you should bear in mind that, under some Member States' national laws (for example, in France, Italy, Belgium, Luxemburg and Portugal), the employee will remain the copyright owner. In other countries, the law states that the employer will automatically be the right holder either initially or by legal assignment (in this case, it is possible for the employee to remain the moral rights holder).
If the employee retains the rights, in order to become the right holder, the employer should include a specific clause in a contract (generally the employment contract), which will assign the copyright from the employee to the employer. The drafting of IP clauses in a contract is a delicate matter and it is therefore highly recommended to consult a specialized lawyer.
Regarding software, there is a presumption of assignment of economic rights to the employer when the employee has created a computer program in the execution of his duties or following the instructions given by his employer 9 .
There is also a particular regime for databases. The ownership will depend on the type of database (original database or databases for which there has been a substantial investment) and on the relevant Member State's national law. Please refer to points II.1.B and II.2.B.
It is indispensable that you are informed when your employee re-uses works (texts, images, logos, music,…) created by third persons. Indeed, re-using such works without the consent of the copyright holder can leave you open to the risk of being sued.
You can be found responsible for your employees' acts.
Therefore, you have to be sure that they are well informed about the principles governing the respect of third parties' intellectual property. You may also, in order to avoid any problems, organise internal procedures for accepting content to be included on the website.
If you decide to entrust the website development to an external company (or person), you may enter into a creation contract which can cover different aspects:
- the appearance and the characteristics of the website and definition of the service provider's duties;
- clients' duties (payment, collaboration: providing necessary information);
- intellectual property;
- reception procedure;
- safeguards and evolution of the website…
A precise calendar is recommended, detailing the deadlines in which the elements will be provided or the website completed. You can choose between a unique final dead line or a series of intermediary dead lines. You may also decide on the penalties to be applied in the event that these are not met.
Finally, the contract may be completed with annexes, which state the technical modalities.
The external creator will be the right holder of the elements that he has created. Therefore, it will be useful to organise an assignment of rights (or a licence) by contract in order for you to be allowed to exploit the website that you have ordered.
As regards the content of a licence, you need a reproduction right in order to put the website online and exploit it. You will need an adaptation right in order to be able to modify it or develop it further. You will need a right of communication to the public in order to put the information online. You will need a translation right in order to offer the same content in different languages.
As regards your investment in the project, you may want to have ownership of the rights to the different elements created for the website by the external creator. In this case, the contract will have to organize an assignment of rights (and not a license). The will of the investor to become the rights owner may be conciliated with the will of the creator to protect his creation and know-how and to still be able to re-use them in the future.
You should avoid any possible responsible for the external creator uploading works which are contrary to intellectual property rights. The latter should also be protected against your mistakes. Therefore, you should create a mutual safeguard against eviction in a contract.
This safeguard will state that the elements you have furnished to the creator for the development of the website (the images, logos, text, music, etc.) are in accordance with the third parties' rights. The creator will guarantee that he is the owner of rights to the software and the different elements included in the website. In the event that this clause is not respected, the person at fault will have to pay any judicial fees and indemnities. This person will also accept a duty to obtain the rights or, if this is impossible, to replace the litigious element by another with similar characteristics. If this solution is impossible or the eviction clause is not complied with, the creator will have to create a new website.
Concerning the website creation, it is possible that not all the developments will be created entirely by the provider. Indeed, it may be the case that the client has already carried out some internal developments himself or received material from another provider. Moreover, most of the content of the website (texts, images, logos, graphics, etc.) will generally be provided by the client and the role of the service provider is limited to the "lay out".
It is thus recommended, on the one hand, to draw up an inventory of the elements provided by each party in order to avoid any further disputes/objections and, on the other hand, to negotiate the sharing out or division of the rights to the different elements protected by copyright. If the client wants autonomy from the service provider, he clearly should avoid assigning any rights to the element that he has provided and try to obtain assignment of all the economic rights to the developments (and the source code of those developments) made by the service provider.
When several persons have jointly participated in creating the website by providing an original contribution, they will all be considered co-authors.
The legal regime of joint ownership is complex and differs significantly from one Member State to another. Therefore, we advise you to refer to the guide specifically dedicated to this matter 10 .
To go online, it is necessary to copy your website onto a memory space connected to the Internet. A host and a domain name are therefore also required.
In order to be visible on the net, your website has to be linked with metatags and hyperlinks.
You can decide to host the website yourself, but this will require the necessary technical equipment and good technical knowledge.
On the other hand, you may entrust the task to a company that offers hosting services.
For this, a hosting contract should be entered into whereby the service provider (hosting company) offers you a memory space and processing capacity using its equipment.
There are free hosting services on the Internet, but in most cases, they present disadvantages (compulsory advertising on the website, smaller memory space…). For both the free services and other paid ones, it is important to carefully read the related contract. In particular, there can be some technical restraints that you have to respect (maximum volume, type of content, use of specific equipment, etc…).
In order to have a website hosted by a third person, the latter will need the right to copy the website and to communicate it to the public (in order to make it accessible on the Internet). Generally, only the copyright holder will have such rights. Therefore, the right holder will have to grant a licence to the hosting company.
The licence may provide for conditions of use whereby the right holder allows the reproduction and communication to the public of the work. It is possible to limit the licence for the purpose of hosting (banning the use of the rights obtained for personal purposes), and to forbid the hosting company to exercise any other rights (for example, to translate the data).
The tremendous network that is the Internet, , requires a unique localising system enabling each of its elements to be accessed (for example a PC, server, rooter or webpage)..
Therefore, any machine connected to the Internet receives an IP address composed of 4 numbers between 0 and 255. Anybody who writes this address in the browser (Netscape Communicator or Microsoft Internet Explorer) will then enter the associated website.
A second type of address has been created in order to help the user to remember addresses more easily and to render surfing more intuitive. Often, the IP address corresponds the site owner or content, for example: www.ipr-helpdesk.org.
Therefore, when going online, you will also need a domain name address in order to be visited by users.
There are two types of extensions (TLD: Top Level Domain) for domain names:
- generic extensions which are linked to the type of activity (".com" for commercial companies, ".org" for the non-commercial registrants); and
- territorial extensions which are theoretically linked to geographic locations (".be" for Belgium, ".fr" for France, ".uk" for the United Kingdom…).
It should be noted thatthe categories are as yet purely theoretical: indeed, a domain name with a ".uk" extension may refer to a server located in the USA while a ".com" may be used for a personal web page without any commercial purpose.
While most people believe that any non-registered domain name may be freely registered under the "first come, first served" principle, this idea should be mitigated. Indeed, some important nuances exist.
First of all, it is possible that a third person has an intellectual property right (trademark, commercial name, name) on a word, name or expression. These rights have to be respected and a registrant having any right to the domain name must be especially careful about this issue. Moreover, judges are increasingly willing to punish those who register a lot of domain names for the sole purpose of reselling them.
The different companies authorized to register domain names do not carry out a prior control of whether they respect any third party rights to a particular name. Therefore, they will not refuse the registration. Nevertheless, a third party may then decide to sue the registrant. If a judge or an arbitrator recognizes the third party's rights to the name, he can order the transfer of the domain name to this third party and fine the registrant.
In order to avoid any problems, we advise you to choose a bona fide domain name and to act in good faith. In such circumstances, your right to the domain name will probably not be contested. It is particularly important to avoid registering a domain name containing a famous trademark because such trademarks are more strongly protected and it will be difficult to prove a good reason for this kind of registration, regardless of the product or service.
Using metatags when creating a webpage will allow the website to be indexed on a search engine. Metatags generally contain a list of keywords describing the content of the website.
The choice of the metatags can be limited by third party rights. Indeed, it is unfair competition and considered as misleading advertising to include the name of a competitor. To include the trademark of a third party may be considered counterfeiting.
Therefore, a safe attitude is to avoid keywords whose sole purpose is to increase the number of visits to a website.
In order to better help you to understand the intellectual property related principles, in this section we have provided some concrete answers to your questions.
You may be tempted to put scanned (digitised) pictures on your web site in order to make it more visually appealing. Can you scan an analogical picture and insert it freely on your website? Two hypotheses have to be distinguished:
- If you have taken the picture yourself (a picture of your holiday, family, car collection, etc.), you will be the copyright holder. You can therefore freely reproduce it and communicate it to the public through your website so long as the subject of the picture is not itself also protected by copyright (picture of another picture, of a painting or of a sculpture). If this is the case, you will need to obtain the prior authorisation of the this subject's copyright holder.
Be aware: the difficulties do not stop here! In some countries, if you take a picture of a person, you will have to respect the right to personal portrayal ( droit à l'image) of this person. This right, which is not directly linked to copyright, will allow any person photographed to prevent the reproduction (notably on the Internet) and communication to the public (notably through the Internet) of the picture. In this situation, you will need the prior consent of the photographed person. There are some exceptions to this principle for public personalities and a private person photographed in a crowd.
- If you scan (digitalise) a picture that you have found in a book or magazine, this picture will probably be protected by a third party's copyright. Indeed, the criteria of originality for such works will usually be fulfilled in the eyes of judges. The act of scanning is an act of reproduction. The reproduction is subject to the copyright holder's exclusivity right. Therefore, before scanning the picture, you will need to obtain the prior consent of the photographer (or the person to whom he has assigned his rights). Furthermore, you may also have to obtain the consent of the person photographed (if any) or/and of the copyright holder of the subject photographed (if copyrighted).
Beware! The fact that you have bought a picture or the negatives does not give you any intellectual property rights thereto. You must still respect the rights of others.
As with pictures, you may wish to include some images (such as amusing images or a comic strip) on your website in order to make it more attractive. The same principles explained above with regard to pictures are to be applied here. You are not allowed to scan an image and include it on your website without having obtained the copyright holder's prior consent. Conversely, you can freely use an image or drawing that you have created yourself, unless it is the portrait of a recognizable person ( in order to respect his droit à l'image or right to personal portrayal).
In the other cases, the image will be protected by copyright if it is original, which will often be the case and, therefore, you will need to obtain the prior consent of the copyright holder. You will also have to obtain the subject's consent according to the right to personal portrayal (or droit à l'image). Independently from copyright, the image may also be protected by trademark law.
Therefore, the cases in which you can freely exploit an image without first seeking consent are rare, unless the images are purely your own creations.
The text may be written by you or scanned from an existing text and re-used as an image or text after using character recognition software. May you put any type of text on your website? Once again, the answer is negative.
As we have already explained, a text may be protected by copyright if it is original. The length of the text does not matter (a slogan, a few lines or pages) neither the medium in which it is originally expressed (paper, floppy disk, CD-ROM, website, etc.).
There is no problem if you are the author of the text, meaning that you have created the content of the text. The fact of copying an existing text obviously does not imply that you are its author.
Conversely, if the text is protected by another's copyright, it cannot be reproduced on a website without the author's consent.
This hypothesis does not deal with digitising a work from an analogical medium (a paper document) but refers to the case where a website contains a work (an image, for example) and this image is downloaded by a surfer who places it on his own website and so (re)disseminates it by Internet.
The famous Copy/Paste function offered by numerous software packages permits a huge amount of data available on other websites (texts, images, pictures, etc.) to be collected in a very short space of time. This technical function allowing very simple reproduction must be used carefully as regards copyright.
Indeed, the fact of copying or downloading a work is an act of reproduction and its dissemination on the Internet is a form of communication to the public. Such acts of reproduction and communication to the public are covered by copyright. Therefore, if the work is protected by copyright, as will generally be the case, the prior consent of the author must, in principle, be obtained.
Some existing software allows you to modify a picture or image (by modifying the size, colour, form, contrast, view, framing, etc.) so that the modified image no longer looks like the original. In this case, are you exempted from requesting the copyright holder's authorization (where the image was protected by copyright and is therefore original)?
The answer is No! Even if the new image no longer looks much like the original image, you cannot use it as you please. Indeed, in order to transform the image with software, you must first carry out an act of reproduction (either by scanning or using the copy/paste function), requiring the copyright holder's consent, except if it is covered by the private copy exception. Moreover, the fact of modifying the image with the software also requires the copyright holder's authorization.
Even if it is true that it is often difficult for an author to find all the infringements of his rights, today there are some technical copyright protection systems (watermarking, for example) which allow a digital work to be identified and easily located on the Internet, even if it has been greatly modified.
However, if the modified image does not look at all like the original image, there will be no infringement.
In order to deal with this very topical question and to simplify the problem, we have limited our analysis to musical files encoded in MP3.
The MP3 norm is a standard compression system for audio data. The MP3 format allows a normal audio file to be compressed 10 or 13 times, with very little loss in quality. Therefore, it is possible to store the content of 10 or 13 traditional CDs in one MP3 CD. We can easily understand its possible uses on the Internet: before, one needed hours to download a normal song lasting a few minutes. Nowadays, a couple of minutes are sufficient if the files are in MP3 format. Internet provides a lot of audio files (which are pirate copies in the majority of cases) in MP3 format, either because they are circulating between Internet surfers or because some Internet surfers record the content of their traditional CDs onto their computer and then use software to compress them and disseminate them on the network.
Generally not! A musical creation, like any other artistic or literary creation, is protected by copyright if it is original, what is often the case. Despite being on the Internet, these principles continue to apply, even if the extent of Internet fraud may give the impression that copyright does not apply.
Therefore, if a work is protected by copyright, it is normally forbidden to digitalize the content of a vinyl or an audio CD and to copy it on a hard disk or on any other medium (unless you limit its use to the familial group). Moreover, it is also forbidden to compress a work with MP3 compression software and to make these files available to other Internet surfers through a website, without the prior consent of the copyright holder. In effect, such acts are reproductions and communications to the public, which are covered by the copyright holder's exclusive rights.
Yes, of course. Using the MP3 format as such is not forbidden. It is only the consequence of its use on copyrighted works which poses problems. Therefore, there are cases in which putting MP3 files on a website is not forbidden:
- If the work is not original and therefore not protected by copyright, although this hypothesis is rare;
- If you have composed, interpreted and recorded the work yourself. In this case, you are in principle the copyright holder and thus, free to disseminate and reproduce the work as you choose;
- If the work is no longer protected by copyright because the author has been dead for more than 70 years. But be careful, even if you do not need to ask the authorisation of the composer of a musical piece or a song, it may be necessary to ask for the musicians' authorisation (who are the interpreters and therefore right holders) and that of the phonogram producers. Moreover, you must take into account the possibility that numerous arrangements of the works may exist. Copyright may have disappeared for the original work, but not the arrangement.
- If the MP3 files respect copyright.
No, not necessarily. The fact that a copyright mention appears or not on a work does not imply the existence or absence of copyright protection. Indeed, protection exists from the mere fact of the creation and therefore, the only conditions for its existence are the requirements of originality and expression in a particular form. The absence of a copyright mention, does not mean it may be copied freely. You will have to obtain the copyright holder's authorization if the work is protected.
Nevertheless, as regards the question of proof, a copyright mention ( Copyright, 'name' - 'year') may be very useful if you include one of your creations (text, pictures, etc) on your website, which will probably be covered by copyright. Indeed, the name of a person that appears on a work is presumed to be that of the copyright holder.
On the Internet, there are often some databases containing works (pictures, images or software) which are said to be "Copyright free" and available to be reproduced freely. For software, we also talk about "freeware" (free software) or "shareware" (software freely distributed for testing purposes by the users. After a test period, the user has to conclude a licence in order to continue using it, or decide to stop using it).
Do such statements imply that the pictures, images or software are not protected by copyright? The answer is, in principle, no. Indeed, if the work is original and the duration of protection has not expired, it is protected by copyright. The mention "copyright free" does not change that. Nevertheless, the statement means that the copyright holder is granting a free use licence.
In this hypothesis, you must take two elements into account:
- On the one hand, the use licence does not imply that you can do whatever you want: the databases generally define the types of use authorised (generally excluding the use of the content for commercial purposes).
- On the other hand, the person who appears as the copyright holder may not in fact not be it. In this case, the true author may appear and refuse that his work be used. The user's good faith cannot be used against the right owner (good faith does not counteract counterfeiting!).
When you create a website, you will probably make one or more links to other websites (or to a particular page of another website). In this case, should you seek authorisation from the owner of the website to which the link is made?
It seems not to be the case. In general, this type of act does not create any copyright related problems. Even if this issue is still discussed by jurists, the current trend is that any website owner is presumed to have given tacit consent authorizing other persons to make hyperlinks to his website on condition that the hyperlink is simple, and that it goes to the homepage (and not to another page of the site). In any event, you should avoid making links to websites containing illegal or prejudicial content (websites involving counterfeiting, revisionism or pornography).
On the contrary, if you are using other hyperlink techniques which are not considered "simple", you must be careful about the possible legal consequences. For example, a hyperlink containing the titles (protected by copyright!) of press articles and systematic links to the website publishing the articles. This practise may be judged unfair competition ( parasitism) and/or a breach of copyright.
The use of "deep links" may also cause problems. This type of hyperlink links directly to a page "deep" within the website, and therefore go directly beyond the home page. Some website owners have stated that it is a prejudicial practise only if the home page contains publicity banners avoided by a deep link.
Framing (use of frame, windows) combined with hyperlinks should also be used cautiously. You should avoid misleading the public about the real owner of the website. For example, it is possible to imagine a hyperlink in a window (frame) which links to a poem on another website. When the user clicks on it, the page containing the poem may appear in such a way that he or she has no way of knowing that they are viewing another website and thinks that the poem is yours. You should avoid this kind of practice or try to obtain the authorization of the owner of the linked website.
As explained in the previous answer, the website owner is generally considered to have given tacit consent to link to his web page.
Nevertheless, there is a limitation to this principle. You may always refuse a hyperlink when its context causes you harm. This could be the case, for example, of a hyperlink to your website that is presented on a pornographic or revisionist website, or that is contained in a sentence having a denigrating or insulting content. The hyperlink may also, according to its context, be judged as misleading advertising (which is forbidden). The hyperlink used to benefit from your work will also be considered as prejudicial (you have created a website with previously unpublished pictures on alpinism and another person creates a website, without any content, but systematically linking to the pictures on your website and thus creating confusion of ownership for the public).
Since there are prejudicial consequences that may arise from the use of hyperlinks, some websites state this kind of specific clause in their general conditions in order to avoid the problem: "Any user accepts to ask for the authorisation of the website owner before making any hyperlinks, of any nature, to this website" or "The insertion, without authorization, of direct links to this web page, or to files or applications available on this website, is forbidden".
Failure to respect the above principles may be subject to penal or civil sanctions (such as a fine).
Such sanctions may appear theoretical since counterfeiting on the Internet is so common and the risk of being sued seems to very low. However, technical mechanisms are increasingly being used to identify protected works and to find, with the help of an automatic search engine, the counterfeiter on the Internet. Moreover, some professional organizations or collecting societies do not hesitate to use such mechanisms to protect their members' rights. Numerous jurisdictions have already sanctioned persons who have included copyrighted works on their websites.
Copyright exists only from the moment of creation. Indeed, expression in a particular concrete form is a condition for the existence of protection. Therefore, ideas, methods, and concepts, even great ones, cannot be protected by copyright.
From the moment that the website or the elements included therein are perceptible for the senses, they will be considered as expressed in a particular form. This would be the case of a website copied on a hard disk, a CD-ROM or drafted on paper.
The best way to avoid a website idea that hasn't already been expressed in a particular form from being stolen is to keep it secret until it has been expressed.
It is important to know that even if protection exists by the mere fact of creation, as with any formality, it is very important to retain some proof about the ownership and date of creation. For this, you may depose a copy of your project with a trusted third party, such as a notary or collecting society.
In order to benefit from copyright protection, no formality (of filing or registration) is required. Copyright protection exists, in effect, from the mere act of creation.
Nevertheless, if the absence of formality makes copyright very flexible, it becomes a weakness in the event of a dispute. Indeed, if two people claim for copyright protection for an identical work, how can the anteriority of a certain creation be proven?
The mention COPYRIGHT (enabling the author to be identified, such as the statement " © Copyright Name of author"), is absolutely not mandatory to enjoy copyright protection. It does however become very useful in the event of a dispute since it constitutes a presumed ownership right.
In order to prove the anteriority of your rights to a work, filing a copy with a trust third party, like a notary or collecting society, is highly recommended.