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Of Pictures, Text And Reports
December 2008 | Intellectual Property & Technology | IP Edge

Establishing a web presence has become a business imperative; companies need to market their goods and services on the World Wide Web as consumers increasingly make the internet their first port of call for information. Business owners may themselves easily create web pages by weaving together their business information with materials from various sources, both on and offline, or hire a third party web designer to do so. However, unknown to many, the use of such materials on a website without first obtaining consent from the copyright owner may land the website in a lot of trouble and result in them being liable to the copyright owners for damages.

Copyright gives the creator of a literary, dramatic, musical and artistic work the exclusive right to reproduce, publish, perform, communicate and adapt the work. Works that are protected by copyright include photographs, graphic designs, music clips, videos, text, articles or reports. By including such works on a website, the website owner has at the very least reproduced and published the works. If consent was not obtained from the copyright owner, such use by the website owner would constitute copyright infringement. The copyright owner may then claim damages from the website owner and obtain an order from the courts to prevent further unauthorised use by the website owner.

Some copyright owners use computer programs known as robots or spiders to assist them in detecting instances of unauthorised use of their works on the internet. These robots or spiders connect to the internet and comb through public web pages using an algorithm not unlike that used in search engines. The content in each web page is then compared against the copyright owner’s work and instances of infringement are then logged. Once sufficient evidence of infringement is gathered, the copyright owner will usually contact the website owner demanding the payment of damages. If demands are not met, the copyright owners may then sue the website owners for copyright infringement.

Examples of instances where copyrighted material may have been erroneously incorporated into web pages include the use of stock photographs or graphics as part of the design feature of the web page, the reproduction of research articles in support of a position or news reports in which the web page owner’s company was mentioned.

It is not compulsory for a copyright owner to mark his work with a copyright notice and, indeed, many works are not so marked. The absence of such notices does not mean that the work is not protected by copyright. Therefore, you must be extra careful when incorporating any third party material into your website. In some instances, the source from which you took the material may well itself be infringing the rights of the copyright owner. Copying from such an infringing source would nonetheless still constitute a copyright infringement.

Prevention is better than cure. It is important to note that apart from being liable for damages, the infringing business owner may find it very difficult to undo the publication of the infringing material – the website would have to be disabled and there may be business interruptions. Additionally, businesses may suffer reputational damage.

Given the high cost of remedying instances of infringement and the ensuing hassle, business website owners should take preventive measures right from the start to ensure that all copyright issues have been addressed. As a rule, owners of web pages should always verify the source of any third party materials used (or proposed to be used on their websites) and ensure that consent has been obtained from the relevant copyright owners. When obtaining a licence, ask yourself:

• is the licence given to you as the website owner or to the web designer whom you engaged to design the website?
• are there any limitations on your use of the licensed material?
• has the licensor given you any indemnities?

Business owners who already have a website may find this a good time to conduct a review of the materials on their websites to ensure that no infringing material has been included in their web pages.