A Quick Guide to Copyright for Website Owners
For a very long time, the internet had been seen as a lawless digital wasteland where anything goes. Not only is that not so, it never was. And some people, website owners included, learned that the hard way. In this article, we will discuss some points of copyright website owners may need to have in mind.
We’ll start with what copyright is, and how it behaves online, as well as discuss some general ways in which copyright may apply to any website or any digital content. We will also discuss some best practices in hosting copyrighted content online. But before we sink our teeth into the meat of copyright, we need to get one thing out of the way. And we bet you already know what it is.
Here’s what we’ll be talking about.
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First, a Disclaimer
The first thing we need to get out of the way is that we can’t dispense legal advice. Each country and some dependencies can have their own rules on copyright protection, and the ways copyright rules can interact internationally are just far too many to discuss. However, not only is there far too much to talk about, in many jurisdictions we are legally prohibited to do so, legal advice being the exclusive province of trained and certified lawyers. Instead, we will be engaging in a discussion about general principles and the various issues which may arise when website owners fall afoul of copyright law. In other words, we’re just offering an opinion.
In a lot of articles, we’ve asked you to rely on your best judgment when deciding which course to take. Not here. When facing an issue in the matter of law, get the best legal advice you can. We can offer one tip with that in mind: the best legal advice is not generally gotten from the internet for free.
In the simplest possible terms, copyright is a set of protections designed to safeguard copyright owners from unlawful use of the content they own or have some other right to. The content to which copyright applies is usually defined as original work of authorship regardless of form or artistic merit.
This means that copyright applies to all sorts of textual, audio, visual, or other creative works or intellectual property (IP) which you may be hosting on your website. Saying that copyright law does not apply to a piece of media is more or less like saying that you don’t have a blood type. “Free for personal or commercial use” is still a copyright status.
Typically, a piece of media starts as a creation of one or more authors who own it fully. Whatever the piece of media is, it is difficult to monetize it unless there is some access to multiplication and distribution mechanisms – a book has to be printed, a record has to be cut, everything needs to be shipped… This is why an author or a group of authors starts off owning all rights to the work in question, but they generally need to transfer the right to make copies of a work – copyright – to a printer, publisher, or some other kind of distributor. The mechanism of doing so is called a license.
A license, in this case, is a type of contract which grants one side, the licensee, the right to make and distribute copies of protected content owned by the other side, the licensor, who is then owed a fee (often referred to as a royalty) or some other form of compensation. It can be exclusive or non-exclusive, meaning that one licensor can license the same content to multiple licensees. However, since most licensors are individual creators and most licensees are large corporations, licensees typically use their dominant position on the market to push for exclusivity.
Licensing is conceived to protect the author or authors’ interest for the work to be distributed and available to the public at a price, alongside the distributor’s interest to profit from the investment of making and selling copies of a work.
Or at least that’s what it used to be like.
With digital media, creating infinite new copies of anything is easier than ever, which is probably what contributed to the “if it is online, it is free” mindset in the first place. It probably takes longer to spell “Ctrl+C, Ctrl+V” than to execute it.
This ease of making and modifying copies of a piece of media often makes it very hard to find the copyright owner. Note, though, that this most often does not excuse you from liability or even criminal prosecution in case you use a work to which you don’t own rights.
The copyright symbol, or copyright sign, consists of a capital letter C (for copyright) circumscribed by a circle. It looks like this: ©. It is used to replace the word “Copyright” or “Copr.” in English language copyright notices. Formerly, United States law required copyright to be asserted by a copyright notice in order to exist.
However, this is no longer the case: in most countries the world over, copyright exists without notice, from the moment a work is published. The copyright notice can be useful, though, for people who wish to know the identity of the copyright owner, be it the original creator, the publisher, or the distributor. So, the mere fact that the work in question does not contain a copyright notice or a © sign does not mean it is free to use by you or anyone else.
The situation is similar with registered trademarks (™ or ® ) and service marks (℠). If such a mark is present, either in the form of a symbol or the word itself, somebody is asserting ownership of it. The opposite does not apply: people and legal entities do not need to assert ownership for it to exist. This is the main reason, other than the moral implications of using somebody else’s work without compensation, why you shouldn’t simply copy content for reuse on your website.
There are cases where you are explicitly allowed to use somebody else’s intellectual property without express prior consent or compensation – usage of WordPress’s name and logo is a good example.
Your website may be hosting completely original content, public domain (free for use) content, licensed content created by other people, or a mixture of the previous. Whether or not your copyright is registered (see below), your website could still benefit from a copyright information page.
As we’ve discussed before, you don’t really need to do anything to avail yourself of copyright law protections. However, you will likely have heard of copyright registration. In this section, we will explain in brief what copyright registration is, how it works, and what good it is.
The exact legal mechanics depend on where you are based, but copyright registration basically means applying to some manner of governmental body for your intellectual property to be registered with you as the copyright owner. This is typically subject to a fee. A copyright application typically has to contain attached the content the applicant wishes to register under copyright protection.
To obtain copyright registration, therefore, you need to provide the content you wish to register, and, depending again on the state of the law in your jurisdiction, you may be issued a certificate. The type of content which can be registered also depends on your jurisdiction, but almost certainly includes non-generic textual content, original images, audio, video, and design.
Now, in most cases, this does not mean any extra protection: a registered copyright is not “stronger” or “better” than an unregistered one. What registration does is facilitate proving a copyright claim. In many jurisdictions, public records are assumed to contain correct information, so the owner of an unregistered copyright faces an uphill battle when attempting to disprove a false registration in a court of law, all the while facing takedown or similar requests.
Copyright infringement is the violation of the rights of the copyright holder by another person. Note that, due to the nature of the license as a contract, you could be infringing on somebody else’s copyright using the content you yourself have created – for instance, if you have licensed it to another under an exclusive license, prohibiting even you from distributing it independently.
Copyright infringement means unlicensed distribution of content, be it identical to the original or substantially similar. It is also sometimes called plagiarism. “Substantially similar” is a legal standard – a phrase that doesn’t mean anything specific until a court of law or other competent authority decides whether it applies.
Depending on the jurisdiction, copyright infringement can be a crime and even lead to time in prison. In most cases, it is solid grounds for liability.
Take this in mind, though: there is such a thing as fair use of protected content. A creator may use others’ work for the purposes of commentary or criticism or parody. This is why film reviews may include clips or stills from a film, for instance, and book reviews lines from a book.
This is the penultimate time in this article that we will say we are not dispensing legal advice, but rather discussing best practices.
The first thing we recommend doing is not attributing to malice that which can be attributed to ignorance or negligence. Maybe the infringing party is not acting in bad faith. If that is the case, they will probably react well to a politely worded letter asserting your ownership of the content and asking that the infringing content be removed. This is usually referred to as a “cease and desist letter”. If you are happy that your content is hosted elsewhere, you may also ask them to link to your website instead, not to host the full version of the text or the high-resolution version of the image, or similar. They may decide to play nice and comply with your request.
In case this doesn’t work, we suggest you take appropriate legal action to compel them to stop infringing on your rights. What the appropriate legal recourse is depends on a multitude of factors, and this is really the point where you need to consult a lawyer. A professional will know what are the appropriate steps to take.
In Conclusion
As you have probably already known, copyright is more complicated than it may appear at first glance. Still, the gist of it is simple enough: content belongs to someone, even if it is free for you to use. For reasons discussed above, please don’t rely on us for legal advice. This much we will say, though: if you are not sure, the safe thing is to assume you don’t have the right to use any particular piece of content. Being respectful to content creators and mindful of copyright owners pays long dividends.
