Copyright - how to be on a safe side?

Given the variety of material involved in the set up and operation of a website (text content, images, etc.), it is very easy for an e-business to inadvertently become a copyright infringer. Copyright infringement actions carry important penalties, and thus e-businesses should make sure that measures are put into place to prevent copyright infringement.

The abundance of materials available on the Internet carries a false feeling that materials that are freely accessible can be freely downloaded and re-used. Obviously, this is not true. Copyright Law protects any original works of authorship that are fixed in a tangible form of expression now known or later developed. This language clearly covers Internet images, online text content and audio file types. Thus, downloading clip art, fonts, icons, stock photos, WAV sound files or any other content from a website for reuse without written permission or a license to do so is clear copyright infringement. Some might argue that a limited use of copyrighted material does not really hurt the copyright owner, or even that it might be a source of free advertising for the owner. But courts are not known to see things that way. Similarly, the fair use exception, granting the ability to use copyrighted material without written permission from the owner, should not be grossly misinterpreted. Copyright infringement is at the forefront of liability concerns; e-businesses owners and webmasters may be held personally liable for copyright infringement, although they may operate as or for a corporation and thus be under the belief that their personal assets are protected against lawsuits.

What is the main rule?

The safest way to approach copyright issues is to assume that any pre-existing work is copyrighted and that it requires permission from the copyright owner to use or copy. Thus, asking for permission is a big step in avoiding copyright infringement legal threats. In the best-case scenario, copyright owners can be found through the contact information listed on their materials. In other cases, locating and negotiating with copyright holders can be a little bit trickier. For instance, in the case of some trade-journal articles, the true copyright owner may not be the publication but the article's author. Similarly, the true copyright owner of photos in magazines or online stock pictures may still be the photographer. In other cases, the copyright owner may have transferred his rights, or passed away, leaving rights issues or reuse policies unclear under his or her estate.

Does watermarking make it easier to find copyright owners?

Digital watermarks are useful, because they display the identity and contact details of copyright owners, but they might also provide a false sense of security. The absence of a watermark does not necessarily mean that a file is unprotected by copyright and is therefore available for use without liability. As indicated in the summary entitled “How to Actively Fight Internet Copyright Infringement,” watermarking technology is not 100% effective. Watermarks might disappear through editing; besides, this technology is too new to apply to a significant number of pre-existing images and audio files. If the copyright owner did not use a digital watermark, that does not mean that he/she forfeits his/her intellectual property rights.

How to conduct a copyright audit?

Any content on a company’s website, including text, images, audio files, material posted on forum, etc. should be regularly reviewed in order to ensure that the company created this content or that appropriate rights have been acquired to permit such use. There might be cases in which copyrighted material acquired from third parties have been obtained for a limited purpose or for use only within a certain jurisdiction. Placing such material on a website with global access may result in infringement. Certain situations might require special attention; for instance, in the case of a picture to be displayed on the company’s website, the company should ensure that appropriate rights have been acquired, and also that any persons depicted in the photograph have consented to the use of their images or likeness. In the case of any content provided by third parties, it is desirable to obtain appropriate warranties and indemnities in this respect.

What is royalty-free content?

Purchasing royalty-free content is a way to get around the threat of copyright infringement. This requires the payment of a one-time fee for unlimited use - with some restrictions - of music, photographs, graphics, etc. Most sellers of royalty-free content have legitimately acquired the copyrights of their materials; however, a cautious business might want to make sure that these sellers do in fact hold these rights and are authorized to resell them. At the very least, the license agreement should provide for warranties and indemnities in case there is a dispute regarding ownership of the copyrights.

What are shareware and freeware?

Shareware and freeware are computer software that is freely available to Internet users for downloading and use. The owner of shareware usually provides it on condition that users pay a fee if they are satisfied with the software and wish to keep using it after a trial period. No fee is charged for freeware, but conditions of use usually apply. Shareware and freeware are not part of the public domain. Although there is likely to be a clear license to use these materials on certain conditions, any use outside the scope of those conditions will expose the user to a risk of liability for copyright infringement.