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Alternatively, the licensing agreement is included inside the packaged software. In all
cases, you should check the licensing agreement to find out what you may and may not do
with the software you have bought. In addition, there may be exceptions in your national
copyright law that allow you to make certain uses of the software without permission,
such as making interoperable products, correcting errors, testing security and making a
backup copy.
c) Using copyrighted works owned by others– If you want to put up any written
material, photos, videos, music, logos, art work, cartoons, original databases, training
manuals, drawings, etc. on your website that do not belong to you, you usually need a
written permission from the copyright owner.
12
Even if you use just a part of a
copyrighted work, you will generally need authorization.
13
Note also that material on the
Internet or stored on web servers is protected by copyright in the same way as works
published through any other means. Just because you obtain material from the Internet
does not mean that you can download or reproduce it freely.
Special care should be taken when using photographs on your website. In addition to the
authorization of the copyright owner of the photograph (usually the photographer), you
may also need separate permission to use the subject matter depicted in the photograph.
For example, if the photograph is of a person, you may need the permission of the person
depicted in the photograph to use his/her likeness (see below); for a photograph of a
copyrighted artwork, you will need clearance of the artist; and for photographs of
buildings, you may need, in certain jurisdictions, clearance from the architect.
Finding the copyright owner and obtaining all necessary licenses is not always an easy
task. In practice, website developers and businesses that create their own website often use
material that is in the public domain.
14
There are numerous institutions (libraries, national
archives, collective management organizations) and online portals that have databases
with public domain works. For works that are not in the public domain, the best way is
probably to see if the work in question is registered in the repertoire of the relevant
collective management organization
15
or clearinghouse, which considerably simplifies
the process of obtaining licenses. There are also excellent portals that offer online
licenses for different types of works. For example, Epictura Image Bank has an online
collection of an extensive amount of images, on a wide range of themes.
16
Some artists
12
You will need permission to reproduce the material in digital form and to make it available online
(communicate it). However, most copyright laws include some exceptions to the exclusive rights of copyright
(often referred to as “free uses”) which allow you to freely use portions of copyrighted works for special
purposes. Examples include: publishing a picture from a book, periodical, or newspaper on your website for
educational purposes; imitating a work for the purpose of parody or social commentary; and making quotations
from a published work. However, such exceptions are very limited and even if you use other people’s work in
free use, you may still need to indicate the name of the author (moral right).
13
There is no general rule on how much of a work can be used without infringing copyright. In every case
it is a question of whether an important, rather than a large, part is used.
14
In most cases, copyright lasts for the lifetime of the author plus 50 or 70 years. After that, the work enters
the “ “ public domain” and may be used without authorization of the copyright owner. Some works are in the
public domain because the owner has indicated a desire to give them to the public without copyright protection.
15
Collective Management Organizations (CMOs) monitor uses of works on behalf of creators and are in
charge of negotiating licenses and collecting remuneration. There is often one CMO per type of work (such as
publishing, music, screen writing, film, television and video, visual arts) and per country. Details of the relevant
CMOs operating in your country can generally be obtained from the national copyright office, or from your
industry associations.
16
See: http://www.epictura.com/
.
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and companies even release their artwork, photos, backgrounds, wallpapers, banners,
logos and other material as free for certain uses. Such material is often called clipart,
freeware, shareware, royalty-free work or copyright-free work. However, do not assume
that you can distribute or copy freeware without limitation. Read the applicable license
agreements first to see what uses can be made of these works.
17
Note that in most countries, when you use a copyrighted work in your website, you also have
the legal obligation to respect the moral rights of the author. You must make sure that:
-
The author’s name appears on the work;
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and
-
The work is not used or changed in a way that would tend to damage the author’s honor
or reputation. For example, you may not be allowed to color a black and white picture;
or to resize, recolor or spindle an artwork without authorization of the author.
d)
Using trademarks owned by others – Many websit es contain discussions of products
and services of other companies. There is usually nothing wrong with identifying
competitors’ products on your website by using their trademarks. However, you should
avoid using a trademark in a way that might cause confusion among consumers as to the
source or sponsorship of the webpage. Such use might well constitute trademark
infringement or an act of unfair competition.19
Some Internet practices may raise trademark issues, such as metatagging, linking &
framing, and using trademarks in domain names (see below). You should be careful to
check the law that applies to your business on this issue and to ensure that you have
permission to show trademarks owned by other companies, if the law requires it.
e) Using others’ liken esses – In many countries, the name, face, image or voice of an
individual are protected by publicity and privacy rights. The area of protection is regulated
differently in various national legal systems. Before using such elements on your website,
it would be advisable to check the applicable laws and to request permission, if needed.
TIP - No matter what material you ask permission for, you should clearly outline the scope
of your license. Think through thoroughly what rights you need to exploit the material for
which you are asking permission, now and in the future. For example, what use will you make
(marketing and promotional campaign, educational purposes, etc.); in what media (for your
website only, or also for prints, motion pictures, games, DVD); for how long; in what
languages; do you want the right to sublicense the rights; etc. You should also get a warranty
from the licensor that the material is not infringing any third party rights. An attorney may
help negotiate the terms and conditions of the license agreement.
17
For example, Creative Commons (see: http://creativecommons.org/
) has a website that allows artists to
offer, for free, some of their rights to any taker, and only on certain conditions. The license may not allow you to
change the images; may require that some type of credit is given to the author; may let you use the work for non-
commercial purposes only, etc.
18
Be Careful. Do not think that you do not need to get licenses if you indicate who the author is. This is a
common misunderstanding. Attribution is not a defense to copyright infringement.
19
Note also that, in many countries, "famous" trademarks are provided enhanced protection. You could
be forced to stop using a famous trademark on your website is such use causes dilution of the distinctive quality
of the mark. Dilution differs from normal trademark infringement in that there is no need to prove a likelihood of
confusion to protect the mark.
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What to keep in mind when creating, launching, maintaining or developing a website?
There are quite a few perils inherent to running a website. Below are some tips for keeping
your website legal.
a) Watch out with linking – Hyperlink s
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to other websites are a useful service to your
customer, but in many countries there is no clear law on when and how you can use links.
In most cases, links are completely legal and no permission is needed from the linked site
to include a link. However, some types of links can create legal liability:
• Links that lead web users to sites containing illegal content (a pirated copy of a song,
perhaps, or an unlawful software program) may subject you to legal liability.
• Links that comprise a company’s logo (for example, using the Nike logo) may violate
copyright, trademark or unfair competition laws.
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It makes sense to get permission for
them.
• Deep links are links that go straight to a specific page other than a website’s home page.
For example, instead of linking to the home page of a newspaper, a deep link might take
the user directly to a newspaper article within that site. Deep linking is generally not
allowed if it is a way of bypassing a subscription or payment mechanism, or if it is
expressly forbidden by the site itself.
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It is necessary in such cases to obtain permission.
• Framing means that you divide your webpage into separate framed regions and display
the contents of someone else’s site within a frame at your site. The difference with normal
linking is that the user is linked to another website in such a way that it is not obvious that
what he is viewing is from another website. Inlining or mirroring occurs when you
incorporate (or “inline”) a graphic file from another website into your own websi te. For
example, if a user at your website can, without leaving your site, view a picture featured
on another site. Framing and inlining are controversial practices, because they can create
the impression that the information belongs to the website doing the framing or inlining.
Always get written permission before doing this.
b) Watch out with metatagging - Metatags are keywords or phrases embedded in a
website’s HTML code which are invisible to the visitors of the website but are read by
some search engines. In theory, metatags allow website developers to provide information
making search engines more efficient. However, instead of using terms that properly
describe the site, some website developers place the names of competing companies in
their metatags. For example, a small chocolate shop may bury the famous trademark
“Godiva” in a metatag. Then, anyone searching for “Godiva” would be directed to the
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A hyperlink takes a user from one website page to another simply by clicking on a word or image.
21
Linking can raise concerns of trademark infringement if it suggests an unwarranted association between
the linking and linked sites, and leads a user to believe that an unassociated web page is affiliated, approved or
sponsored by the trademark owner.
22
Sites can lose income, because their advertising revenues are often tied to the number of users who pass
through their home page. Some enterprises also dislike deeplinking because it may falsely create the impression
that the two linked sites are associated or endorse each other.
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chocolate shop’s site. This kind of deceptive use of another company's trademark in a
metatag may constitute unfair competition or trademark infringement.
23
c) Choose carefully your domain name- Be sure that you do not enter into conflict with an
existing trademark or other designations (such as International Nonproprietary Names for
Pharmaceutical Substances, names of intergovernmental organizations, names of persons,
trade names and geographical indications). It is strongly advisable to do a trademark
search before you register your domain name, since domain registrars generally do not
check if a requested name violates an existing trademark. If you do receive a domain
name that conflicts with someone else’s trademark, you could lose the right to it if the
trademark owner takes legal action against you.
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d) Be sure not to disclose trade secrets– Any confidentia l business information that gives
your business a competitive advantage, such as sales methods, consumer profiles, lists of
suppliers, manufacturing processes, marketing plans, etc. can be protected by trade secret
law or laws on unfair competition. If a trade secret is disclosed, even accidentally, It will
no longer be protected the information. Imagine the disaster that would follow if you
inadvertently post photographs of a secret manufacturing process on your company’s
website. Before your website goes live, you should scrutinize every page of it and make
sure that it does not contain any confidential business information of commercial value.
e) Be sure not to disclose patent related information– In order to obtain a patent, an
invention must be “new” or “novel”. This means that the invention must not have been
disclosed to the public prior to the filing of a patent application. If your business has
conceived a valuable invention for which it wishes to obtain a patent, you should abstain
from any marketing efforts or disclosures of information relating to the invention prior to
filing a patent application. Offering the products for sale on your website will destroy the
novelty of the invention and render it not patentable. Equally, when you market your
products on your website and the description of the product discloses its innovative
qualities, such a disclosure will most likely bar you from obtaining patent protection.
f) Respect other people’s personal data- If your website receives consumer information,
be sure you comply with the applicable data protection or privacy laws. You may be
obliged to take certain steps to assure consumers that personally identifiable information
is protected, and to display a clear privacy policy on your site.
g) Immediately remove infringing material- If someone complains about an unauthorized
use related to your website, you should remove that material (or disable the link to that
material) pending resolution of the dispute. Continuing to use infringing material after
being notified may aggravate the claim and increase the chances of your being found
liable (and increase the amount of damages you may have to pay).
h) Be sure your online agreementsare enforceable- If you sell products or services on
your website, or allow users to download software, you may have specific agreements
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The laws are complex in this area. Usually, the courts regard the practice of metatagging as potential
trademark infringement or unfair competition, if the use might suggest sponsorship or authorization of the
trademark owner, or if consumers looking for the products of the trademark owner might be misdirected and
diverted to a competitor’s website and be at least initially confused in their search for the trademarked goods.
Conversely, where the use of trademarks as metatags is not unfair or misleading, such practice may be allowed.
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WIPO offers a list of free online trademark search portals at http://arbiter.wipo.int/trademark/index.html
.
Documents you may be interested
Documents you may be interested
