Website-law.co.uk

Website content theft is an extremely common problem. Quality content can take a lot of time and effort (or money) to create – and it can be stolen in seconds by a child with a computer and a internet connection.

Legal proceedings are the ultimate weapon, the nuclear option, in your armoury against website content theft. But before issuing proceedings, you should consider in detail the other options open to you.

I should say that the title to this post is misleading (at least to an English lawyer). Theft is a criminal offence. Whilst the unauthorised copying of website content will usually constitute a civil infringement of copyright, it will not usually constitute a criminal infringement of copyright. So, it’s unlikely that the police or trading standards officers will assist you if someone copies material from your website. There are, however, a number of things you may be able to do on your own, without incurring the expense of a lawyer.

First, you should consider contacting the person responsible for the website asking for the material to be removed. If the website in question does not have a contact email address or HTML form, you can perform a WHOIS search (e.g. at Domain Tools) and write to the email address(es) given.

If that does not work, you should consider writing to the ISP hosting the website. You will usually be able to identify the servers hosting the site (and the relevant ISP) from the WHOIS search.

If the ISP is in the USA, you should make your notice to the ISP compliant with the requirements of the Digital Millenium Copyright Act (see Wikipedia). A list of designated agents for the service of DMCA notices is available on the US Copyright Offices website.

If the ISP is in the EU, you should point out in your notice that, as a result of your notice, the ISP will lose any protection under the Ecommerce Directive that it may have had against proceedings relating to the infringing contract.

In any case, your communications with the website owner and ISP should make it clear: (i) what the infringing material is; (ii) where the infringing material can be found; (iii) your full name and contact details; and (iv) details of your rights in respect of the material (e.g. that you the author or an exclusive licensee of the material). The appropriate degrees of politeness, aggression, etc will depend upon the circumstances.

If neither the website owner or the ISP responds – or if neither responds helpfully – that is usually the time to consider legal proceedings.

Clients usually think that joint ownership of copyright is a good thing; lawyers (in the UK at least) usually think that it is a bad thing. Why?

A number of old English cases (e.g. Lauri v Renad in 1892, Powell v Head in 1879) established that a joint owner will not be allowed to exploit a copyright work without the agreement of the other joint owner or owners.

These old cases were expressly incorporated into the “new” law (i.e. the Copyright Designs and Patents Act 1988).

The principle leads to a problem: where the joint owners get into a dispute, it may become impossible to exploit the copyright work at all, as each joint owner thwarts the other’s exploitation plans.

From the commercial perspective, this is less than ideal, as it means that a potentially valuable asset is locked-up.

The effects of this law can be lessened by an initial contract specifying the forms of exploitation permitted by each joint owner, but contractual restrictions are often less certain than statutory rights - and gaps can sometimes be found in contractual provisions, not matter how careful the drafting.

So, before you agree to a joint ownership arrangement, you need to think very carefully about how the relevant copyright work may be exploited in future. You should also consider other possibilities (e.g. one party owning all the rights, and licensing rights to the other party). Whatever you decide, you should ensure that the agreement is properly documented.

When you take a photograph, you own the rights in it, don’t you?

Yes. And no.

The person who takes a photograph will usually be the first owner of the copyright in the photograph (unless that person is an employee acting in the course of his or her employment). However, there are other rights to consider.

For instance, under the Copyright, Designs and Patents Act, where a person commissions a photo for private and domestic purposes, that person has a right not to have the work shown in public (subject to certain exceptions).

And if you take a photograph of another copyright work (such as a painting in a gallery or a corporate logo) the publication of your photo on your website could infringe the copyright in that work.

It will not be an infringement if the inclusion of the underlying copyright work is merely incidental.

In addition, there is a special exception which means that photographs of buildings, and photographs of sculptures and models for buildings and works of artistic craftsmanship which are on permanent public display, will not infringe the copyright in the underlying work.

This is one area where a little legal research usually pays off.

However, if you are in any doubt and there is any risk of a complaint, you should seek professional advice.