COPYRIGHT INFRINGEMENT OF A WEBSITE

COPYRIGHT INFRINGEMENT OF A WEBSITE

By Suwarn Rajan, Advocate & Patent  Agent, Managing Partner, CARE INTELLECT,NEW DELHI,

Email:careintellect66@yahoo.com,www.careintellect.com

 Website Copyright Infringement

Copyright concerns when creating a web site:

A party is guilty of copyright infringement if they violate one of the five exclusive rights given to copyright owners under the Copyright Act. Included in those rights are the right to prevent others from reproducing (or copying) a work, publicly displaying a work, or distributing a work. As a result, web page authors should take care not to copy the work of others. An Internet service provider can also be found liable for copyright infringement even when they are not directly engaged in the copying of protected materials, as is explained in more detail in the  section on ISP liability.

• Obtaining images for a web page. One of the chief attractions of the World Wide Web is the ability to use graphics to convey information to users. A sophisticated and subtle graphical presentation is the hallmark of some of the Web's most popular sites. The following are meant to guide a web page creator when selecting images for incorporation into a page.
  • Creating original images from drawing and painting programs. The best way to obtain images is to create them in a drawing or other image creation program. In doing so, however, it is best to start from scratch rather than from someone else's creation. Even if an image is significantly altered, the new image may infringe upon the copyright in the first image by being a "derivative work."
  • Taking images from third-parties. The simple rule is, "Don't steal someone else's images." The moment an original image (or string of text) is fixed on a hard drive for the first time, it is protected by copyright. Any unauthorized copying of a protected image is an infringement of the creator's copyright, unless the use falls within one of the very limited exceptions to the copyright law, such as "fair use." In most cases, it is unlikely that the incorporation of an image into a commercial web-site would be considered a fair use.
  • Licensed images from the Internet. Some images, such as Microsoft's "Internet Explorer" logo, may be copied, but only if the would-be copier accepts the terms of a license defining the permissible uses of the image. Often such licenses provide that the copier cannot alter the appearance of the image in any way, and may use the image as a link only to certain designated sites. (An example of a logo license agreement can be found on MSNBC's web-site.)
  • Clip-art Libraries Provided with Software. Other sources of licensed images include clip-art files, such as those provided with Claris Home Page, Microsoft Front Page, and Adobe Page Mill software. Incorporating clip-art from these libraries into a page does not violate copyright law, as these images are licensed to the purchaser of the software for this purpose. To avoid liability, however, a webmaster must be careful to obey the terms of all applicable license agreements. For instance, the license may not allow a user to alter the images in any significant way.
  • Free Images Off the Internet. Some web sites provide images that are for use by others. These images may be used in a web page, as long as the terms proposed by the image creator are followed. Typically, these sites only require that some type of credit is given to the author, including a link back to the author's site. However, there remains the possibility that the images were misappropriated at some point and were not original creations of the alleged author. In these cases, use of the images may infringe the copyright rights of the original author.
• Developing text for a web page. The guidelines for text development are similar to those for obtaining images. Truly original text, developed by the creator of the web-site, may be used without copyright concerns. As with images, appropriating text from third-parties without permission is illegal, unless there is some substantial "fair use" justification for the taking. Use of third-party text pursuant to a license agreement should follow the terms of the license agreement. As for public domain works, one should never assume a work is in the "public domain" without independent investigation.
• Developing Java Applets, Java Scripts, and ActiveX scripts. Like text and pictures, it is normally a violation of copyright law to appropriate scripting or programming from someone else without permission. Many parties have made their scripts and applets available for use by the public. In these cases, use is allowed as long as any requirements set forth by the programmer are followed.

Copyright law protects original creative work. When you take someone's work, that act can be copyright infringement. On a website, creative works can include:

• The words used (text).
• The graphics and images used.
• The data present.
• The HTML code, other code, and scripts.

REMEDIES

• Copyright owners may be awarded "statutory damages" in copyright infringement lawsuits. This means they don't have to prove actual monetary damages.
• Courts may award from statutory damages per infringed work, at the Court's discretion.
•  When infringement is committed willfully, the Court may award statutory damages.

           What if infringement found:

• File a notification with Google, Yahoo, MSN and other search engines that you have violated the Digital Millennium Copyright Act (DMCA). Search engines regularly remove DMCA violators from their database.
• Contact with a demand to immediately remove the infringing material from website.
• File a copyright infringement lawsuit, or negotiate an acceptable settlement. Even if the infringer immediately stop using your copyrighted material upon notification , you  are still entitled to damages for the time your work was used.

• Petition the web host to shut down account. Most web hosting companies have "abuse" departments to handle such requests.