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In the last few years, the legal aspects of Web design have become increasingly important. "Domain name grabbing", the practice of registering a domain name which contains someone else's trademark, has received a large amount of attention in the press. Many Web designers will also recognize the problem of someone else copying their images or even their entire Website. And there are many other problems as well.
This guide is intended to provide an introduction to the legal aspects of Web design. However, this guide should not be relied upon in case of legal problems. It is intended for informative purposes only. If you are trying to resolve a legal conflict, please consult an attorney in the country you live in.
More information on patents, copyright, trademarks and other Internet-related law is available on Iusmentis.com.
There is also a list with frequently asked questions that may be useful. If you have questions not listed in this FAQ, please let me know.
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.
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.
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 could add the full word "Copyright" to the "(c)" string.
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.
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.
The WDG offers all its material under the Open Publication License, which allows almost any kind of re-use and copying of our material. However, if someone makes a modification, they must indicate so, and no one may remove our names from our material.
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.
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.
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.
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.
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 Dejanews 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. 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.
A popular topic in the press is the use of trademarks, in particular with respect to domain names. However, it is important for every Website owner to realize what a trademark is and when it may be used by other people.
A trademark is, broadly speaking, any mark that is used for indicating goods or services in commerce. Usually, it is necessary to register the mark with a local trademark office before it gains protection under trademark law. The exact rules differ from country to country, and sometimes you also have some kind of protection without registering the mark first.
A trademark can be one or more words or an image (a logo). Sounds and colors can sometimes also be used, but this is more difficult and may not be permitted in all countries.
To indicate that a word, phrase or image is a trademark, the suffix TM can be used. Note that this indicator has no legal status in countries where only registered trademarks are protected against use by others. A registered trademark is indicated with the ® symbol.
A trademark is intended for use in a certain class of commerce, for example selling food, air travel or computer programs. This has to be indicated during registration. A trademark is also limited by a certain scope, the area in which it is used. So, if one person holds the mark "Aero" for air travel, someone else can hold that same mark for air fresheners. Only when the other person's registration can be seen as damaging to the first mark can this be prevented (for example, using a whiskey's name for a toilet cleaner would not be permitted, even though these are different classes).
Similarly, a bakery in one city can not prevent someone else in another city from opening a bakery with the same name. The first bakery would have to be a national chain in order to prevent this. This of course causes problems on the Web, as domain names are not limited to a specific location: there can be only one aero.com, but is it the air travel or the air freshener company who has the right to it? These issues are difficult to resolve, but most countries have adopted a "first come, first serve" policy. So, the first holder of "Aero" would get aero.com, and the other would have to pick something like aero-travel.com.
A trademark is said to have a "strength". A strong mark is one which is very clear to the public. This is often a made-up word, so that no confusion with competitors or ordinary household items can arise. A weak mark is hardly recognized as such. The weaker a trademark is, the harder it is to take action against people who use the mark.
When you need to pick a name for your own Website, it may be worthwhile to pick something that can be registered as a trademark. This gives you extra protection against others who want to provide the same kind of site, and it makes it easier to distinguish your site from theirs.
As a trademark is intended for use in commerce, trademark infringement can typically only occur in commerce-related activities. The mere mention of a product in a book (such as "John drank a bottle of Coca-Cola") is not trademark infringement. However, such use can be seen as weakening the mark, because the mark is then often used as a label for a generic product, and not that specific brand. Thus, people who use "xeroxing" for photocopying or "Hand me a kleenex, I've spilled my coffee" may still get angry letters from Xerox or Kleenex, demanding that they stop using their name. So be careful when you use someone else's trademark when you don't have to.
People who review products or services do need to mention the name of that product, and this name is often trademarked. It is common practice to write the name followed by TM or ® to indicate this, but don't do this every time you use the name, as this makes the text very tiresome to read. Alternatively, you could end the review with a generic text like "A, B and C are registered trademarks of company X".
The same rules apply for using the logo of a product, which is often also a trademark for that product. However, in addition to trademark protection, this logo also has copyright protection when it is more than just a name in fancy letters. Using the logo may then be seen as a copyright violation.
One of the most visible areas of trademark use on the Internet is in domain names. Many companies register a domain name for every trademark they own, so that users of the associated products can easily find more information on it. However, when that domain name is owned by someone else, the company may miss those visitors. In the past, several people have registered domain names for other people's trademarks, in the hopes that they could sell those to the owners once those realized the importance of the Internet. Needless to say, few trademark owners were pleased by this, and some took action by suing the domain name owners for trademark misuse.
If you need to pick a name for your Website domain, ensure that it is sufficiently different from all other sites which offer similar services. Otherwise, you will cause confusion amongst visitors and you may expose yourself to lawsuits and conflicts with the owners of those other sites.
An interesting trick to get more visitors to your site, is to include the names of your competitors in a META keyword element. Search engines will then index your site and note that this name occurs on it. Users who then search on the word, will find your site and may go there in the hope it contains what they are searching for. Apart from the fact that many users will go away as soon as they realize they've been tricked, there is also the risk that the name is trademarked. In that case, the use in the META tag can be trademark infringement.
Until recently, patents have not gotten much attention on the Internet. However, now that more and more people realize the importance and the power of patents, this situation is changing tremendously. It is certainly possible that some algorithm or technique on your Website is patented. As infringing on someone's patent can be very costly, it is important to be careful.
A patent is the exclusive right to make, use or sell an invention in a country. This invention can be a product or a method of making a product, although since recently also methods of doing business and computer programs can be patentend. In order to get this right, the inventor must apply for a patent at his patent office. He must fully disclose how the invention works and how it can be constructed and applied. This allows (at least in theory) others to make use of the invention. In return for his disclosure, the inventor gets the exclusive rights for a limited time (typically 20 years after applying for the patent).
There are two important criteria that determine whether an invention can be patented:
When an inventor applies for a patent, the patent office searches the available literature to determine whether the invention is novel, and based on the most relevant publications they find, they determine whether it would be obvious to invent what is in the patent. If the invention is found to be both novel and non-obvious, the inventor gets the patent.
It is important to note that the tests for novelty and obviousness are done on the basis of the knowledge people had at the moment the patent was filed. As it may take several years for a patent application to be granted, the idea behind the invention may already have been published by someone else, but if that publication was done after the day the patent was filed, it does not count in determining the novelty.
When you invent something, but never publish or produce the idea, others can still file for a patent, and you may then be infringing when you later decide to produce the invention. In some countries, most notably the USA, there is the notion of the "true inventor", who first invented something. Others cannot patent the invention, if the "true inventor" can prove he invented it first. Other countries, such as most European countries, have a simple policy: whoever applies first, gets the patent.
It is possible to get a patent in more than one country. An inventor can apply for the patent in several countries at a time, or apply in one first, and within a year apply in others as well. There are several treaties that make this process easier. For example, as there is no "European patent" which is automatically valid in all European countries, an inventor would have to apply for a patent in all countries separately. To avoid this, he can apply at the central European Patent Office and process the application one time; if this is done successfully, the patent application can then be transformed into national patents without extra effort.
Patents are very expensive, as the idea is to make the whole process self-sufficient. It is only interesting to apply for a patent when the inventor expects to make a lot of money from his invention, either by selling the invention in a monopoly position, or by licensing other people to do so. Licensing can be a very lucrative business if your invention is very useful.
To determine whether something is novel, all published literature is (at least in theory) taken into account. But in fields such as computer science, few literature exists. This makes it a lot harder to determine whether a particular invention is truly novel.
Because of this, several patents have been granted for things that many computer scientists argue was already known before the patent was filed. However, without a publication showing the invention in the patent, dated before the application date, it is not possible to get the patent invalidated.
It is at this moment too early to say whether WWW-related patents (such as the Amazon one-click patent, or patents on methods for using stylesheets with Webpages) will stand up in court.
An inventor can get a patent for a product, such as a machine, which he invented, but also for a specific method of doing something. When a product is patented, no one else may make, use or sell that product. Typically the patent does not describe a product in great detail, but only lists the essential features. This makes it impossible to "work around" the patent by removing some non-essential elements from the invention.
This definition of what exactly constitutes the invention is given in the claims. You can only infringe on a patent when your product matches one or more of the claims. So, if a claim were to say that the invention has four wheels, and it would be possible to build and use the invention with only two wheels, then that two-wheeled variant does not infringe on the patent. For this reason, claims are written in very broad language to cover as many variations as possible.
When the patent describes a method, no one else may use that method. In addition, everything produced directly by that method is also covered by the patent. For example, Unisys holds a patent to the GIF algorithm for making images. In the last few years, they have started to enforce their patent by demanding that people buy licenses or stop creating GIF images. As the patent covers the method of making such images, the images produced by that method are also covered by the patent. So, if you create a GIF image with a program that does not have a license, you may not use that GIF image.
In the USA, everyone, including private persons, can infringe on a patent if they make, use or sell the patented invention. However, in general it is too expensive to track down and prosecure individuals who do this. In most European countries, private persons cannot infringe on a patent, as the patent laws there only reserve the patent rights for "use in commerce".
A person or business can only infringe on a patent if the patent is valid in the country where they make or use the invention. So, a German company is free to produce an invention which is patented in the USA. If the inventor in the USA wanted protection in Germany, he would have had to apply for a patent there as well. He can only do this within a year of his original application in the USA.
The World-Wide Web makes this situation a lot less clear. If the US patent covered a method, and the German company built a Website which executes that method for everyone, then any US citizen using that Website is violating the patent. The German company may then be seen as assisting in this infringement, but it would be difficult to bring them to a US court.
A Website is usually an original work with some kind of artistic value, so it would be copyrighted. In addition, the individual pages and images are also copyrighted.
Copyright mainly concerns itself with the expression of an idea. The idea itself is not copyrighted and may be used freely by others. So, something like a navigation bar at the left on every page is not copyrighted, although a particular navigation bar, with certain colors and arrangement of the items on the bar may be.
First, write a letter to this person informing him of the copyright status of your work, and ask that he removes the pages. If he does not do that, you can contact his service provider with the same information. Most providers are very cooperative when it comes to copyright infringement, so if you can provide a reasonable argument that that someone is infringing on your copyright, they will take appropriate action.
Send him a bill. In most countries, your national journalist or writer's association can give you more information on the appropriate rate for unauthorized use of your work. In my country, the Netherlands, using someone's article or photo without prior permission can be billed at 300% of the normal rate.
What rate you can charge, depends on how your Website is set up and whether it is your normal work to write articles of this type. If you offer information free of charge, then it will be more difficult to successfully send a bill.
When a word looks or sounds similar to a trademark, it can be seen as confusing, and if that is the case, the word infringes on the trademark. However, this is in general very difficult to say. When in doubt, please consult an attorney for an expert opinion.
The best way to do this is to contact a patent attorney, who can perform an extensive search in all published patents for you. You can also search for yourself in databases such as IBM's patent database, but keep in mind that not everyone uses the same keywords, so you may miss things by only looking for the "usual" keywords.
