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Tech Tips

By Benedict O'Mahoney
http://www.benedict.com/digital/digital.asp

Web publishing
If you are going to publish a Web page (like this one), there are a lot of items that you need to consider. One way to learn about good page design is to cruise other people's well designed pages. You can use your browser's View | Source command to peruse the HTML markup, locate the .gif files, identify scripts, and generally get the inside view of how the page is designed and constructed.

This is analogous to running your favorite computer application and being able to call up the source code in a window to see how certain subroutines operate. With such easy access to the inner workings and contents of other Web pages, it seems only natural to borrow, paste, modify and otherwise use the resources of the net to fashion your own presence.

Content
As far as expression of an idea goes, a Web page is not much different than a magazine, book or multimedia CD-ROM. In that a Web page can contain text, graphics, audio and video, the similarity to a CD-ROM is appropriate.

Generally, everything on a CD is copyrighted. If you look at a game like Myst, most people understand that the eerie music and distinctive graphics are copyrighted. Similarly, if you look at a Multimedia encyclopedia CD, most people understand that the graphics and narrative are protected by copyright.

However, if you were to post that same Multimedia encyclopedia CD as a Web page, the copyright protections inherent in the individual elements of the work would probably be less obvious to the casual browser. The reasons for this discrepancy are both psychological and technological.

Design
Using the CD-ROM analogy, it is safe to say that a CD-ROM is protected as a whole product. In the same way, a Web page may be protected as a whole product. However, the technology of the net poses special problems. In a CD-ROM, the design is a given. All users see basically the same thing, with possible variations due to video adapters and displays. On the Web, different browsers will display the same Web page differently. Additionally, people can modify their browsers to alter or modify the way Web pages are displayed. However, the underlying design of a Web page consists of a certain arrangement of such elements as text, graphics, audio, video, VRML, etc., and as long as that arrangement is original and non-trivial, then the design of the page will be protected by copyright. But what about the common net practice of grabbing HTML code from other good looking Web pages as a source of inspiration and for use in one's own Web page? This practice raises two separate issues: 1) Is saving HTML source code to your hard drive a copyright violation? 2) Is reusing the HTML source code as a template for your Web page a copyright violation? This issue requires that we hack into the thicket of net technology to understand where and when a copying occurs. When your Web browser (client) accesses a Web page (server), the server sends the HTML information to your client. The HTML information includes information regarding the location of the other elements on the page, including graphics, audio files, video files and links. Your client then uses that information that it now holds in RAM to arrange the graphical display of the Web page on your terminal. Has any copying occurred yet? This is an area of intense controversy at the moment. The NII is proposing that this be considered the line as far as determining copying for copyright purposes. This is counter-intuitive, to put it mildly, and most commentators would not consider the act of accessing a Web page to also constitute an act of copying the Web page. Now suppose you are viewing a well designed Web page that you particularly like and you decide to save it to your local hard drive. You can either use your browser's Save function to save the Web page as it looks (minus the graphics) or you can use your browser's "Source|Save" function to save the HTML code to your local hard drive. Are we copying yet? At this point, you have transferred the information from dynamic RAM to a fixed space on your hard drive; you have effectively copied the material. Given that you have now copied material, the next question is whether you have a valid fair use argument for doing so. Applying the Fair Use Test, it appears that there may be some convincing arguments for a Fair Use defense in this case.

Link Lists
A link is a URL, a fact not unlike a street address, and is therefore not copyrightable. However, a list may be copyrightable under a compilation copyright if it contains some originality. An example of a list of facts that lacks the requisite originality is a telephone book. A telephone book is a list of facts (people's names and phone numbers) generally listed in alphabetical order. It was held in the case of Feist v. Rural Telephone that a telephone book as such could not be copyrighted under a compilation copyright because the fact that the listings were alphabetized was not original enough. Presumably, a telephone book that listed people in random order would be less deserving of copyright protection.

It seems that such random listings are just what appear on a lot of Web pages. However, if there is some original thought put into creating a link list, then it may be protectable. For instance, the listing of Sources in this page all relate to intellectual property. Many grueling hours were spent separating the relevant from the irrelevant, and consequently this listing is protectable as a compilation.

This means that if you see a cool Link List, and you copy wholesale to your Web site, it is probably a copyright violation. However, if you want to take several links from a list, this is probably not a copyright violation.

A federal district court in California dismissed Ticketmaster Corp.'s copyright infringement claim against Tickets.com for including a hyperlink to Ticketmaster's website. ticketmasterCorp. v. Tickets.com Inc., No. 99-7654 (C.D.Cal., Mar. 27, 2000). Ticketmaster's site facilitates online purchase of event tickets, and includes basis information. It also states in its terms and conditions that copying for commercial use is not allowed.

Original Material
Although somewhat self-evident, it warrants mentioning that you can put originally created text, graphics, audio and video on your Web page. An example of original text is the text you are reading right now. I didn't copy this from someone, I just made it up. Consequently, I can put it here for you to read without fear of being sued by someone for copyright infringement. What a nice feeling.

Licensed Material
If you know of an item that you would like to use that was created by someone else and whose copyright has not expired, then the most prudent course of action is to license the right to use that item from the copyright owner.

For example, if I wanted to insert a graphic of Darth Vader on this Web page, I would have to contact Lucasfilms and obtain a license to use the Darth Vader image. The license would spell out how I could use the image, how much I would have to pay to use the image, and any other conditions and restrictions deemed relevant.

Public Domain
The public domain conjures up an image of a strange sea full of old and forgotten stuff. However, given the somewhat laborious task of tracking down copyright owners and negotiating licenses for items that may only be incidental to your Web page, using material from the public domain is often an attractive alternative. However, you will want to be sure that you can determine the status of the copyright, as it is not always readily apparent.
If you see an item on some else's Web page that is in the public domain, you are free to download it and incorporate it into your Web page. However, given the duration of copyrights compared with the age of the Web, you can be sure that most items you will encounter on the Web will be under copyright. Also note that if you find an item in the public domain that you wish to use, you can only use that item and not the otherwise copyrightable elements of the page from which it came. Additionally, be careful of compilations of public domain items; while use of an individual element will be legal, the entire collection of items may be protected under a compilation copyright.

Fair Use
It should be noted that this is an area of some confusion on the Web. While this Web site makes use of Fair Use, the exception is fairly limited in the context of a Web page. This is especially true in the context of appropriating material from other Web pages for your Web page. As can be seen in the Fair Use Test, one of the factors to be considered in determining infringement is the effect in the marketplace for the original work.

Implied Public Access
Can you link to anyone you want? Do you have to get permission to link to someone else's page? Can someone prevent you from linking to their page? Can you prevent someone from linking to your page? Is there such a thing as a doctrine of Implied Public Access on the Web?

As it stands now, there appears to be a doctrine of implied public access on the Web. The Web was created on the basis of being able to attach hypertext links to any other location on the Web. Consequently, by putting yourself on the Web, you have given implied permission to others to link to your Web page, and everyone else on the Web is deemed to have given you implied permission to link to their Web pages.

But what about the bad association that inevitably rubs off on your Website when some other particularly vile Website decides to link to it? Good will is a substantial asset of a Website, and it is possible that such an asset could be diminished by such associations. This issue was raised in a WebWeek editorial (WebWeek, July, 1995) in the context of Babes on the Web, a Website that rates "the women of the Web" and links to various women's Web pages that contain photos. The editorial posits that monitoring places from which your site is linked is your responsibility. Suggestions for monitoring include combing the Web for references to your site, examining where your incoming traffic is linking in from, and asking other site to get you permission before linking to your site.

Such monitoring activities will probably be woefully inadequate to protect and insulate your site from other pages with which you do not wish to associate. Since there is insufficient legal precedent in this area, it is prudent to fall back on the law of the net - netiquette.

Netiquette dictates that:: Links to other Websites be removed if the linkee objects.

Composite Web pages
Composite Web pages are pages that take different elements from diverse pages or servers to create a new Web page. However, instead of copying the elements to the composite page, the elements are linked in. Thus, the composite page would consist of a series of links to other sites and servers. When you browse the composite page, the page directs your browser to get the graphics and other elements from the original sources. This type of linking raises several hairy issues. One such issue is related to implied public access as discussed above. If you put up a Web page, and by so doing have impliedly granted permission to others to link to your page, have you also granted them permission to link to individual elements of your page? The problem here is that the Web is multimedia and context is everything. As we have seen with fair use the copyright status of an element maybe context dependent. For example, this site contains a sound sample of 2 Live Crew's version of Pretty Woman. The sample resides on this site without permission of the copyright holder in the context of commentary and criticism as outlined in the fair use test. If someone were to create a Web titled "Free Audio Samples" and link to this, and other similarly situated samples, it is clear that such a use would not be protected as fair use. By stripping an element of its context, you also strip many of the copyright privileges that may have been attached.

Protecting Your Website
If you or your company have created website, you are probably invested enough that you would like to protect it. If you are a library or museum, you may have special considerations.

The two primary methods of protection are technical countermeasures and legal protection. Technical countermeasures include strategies such as digital watermarking and spiders that search the Internet for copies of your pages or graphics. These strategies tend to be cumbersome, expensive, or user-unfriendly. The primary vehicle for legal protection is copyright. This is by far the easiest and most popular form of protection in use today. In implementing a copyright strategy, there are three items that you should consider:

Ownership
Notice
Registration

Ownership
Before you slap a copyright notice on your website, you should have a clear understanding of what exactly it is that you consider to be protected by copyright. There are many elements to a website, including

Text
Graphics
Script
Data
Code

If you created everything on the site, you can be reasonably comfortable in you ownership. However, if you had someone else create text copy, or download some clip art, or used scanned photographs from your archives, or hired a web design firm to load all of your content into an attractive package, then you need to think a little harder.

For every item on your website, you need to have created on your behalf, or have some mechanism to transfer the ownership to you. This may sound like a pain, but book publishers and movie producers have done this for years. Check the text, did you write it, an employee or an outside contractor? If you did, and you did not otherwise assign the rights to someone else, you're golden. If an employee did it during the course of their work, that is good. But to be safe, it is good to have an employee agreement that explicitly assigns their work to you. If a third party did it, then you need to have an explicit contract that states that work was done as a work for hire. Otherwise, you merely get a license.

For clip art, check the license agreement in the box. In many cases, the license agreement will restrict the use to non-profit, non-electronic or non-useful uses. Or in any way that you might find remotely useful. Also, with shovel-ware clip art packages, even an explicit license may be ineffective as they may not have the rights to pass on to you.

If you or your company have created website, you are probably invested enough that you would like to protect it. If you are a library or museum, you may have special considerations.

Notice
As evidenced by the preponderance of websites bearing them, it is generally a good idea to slap that copyright notice on your website. It used to be that in order to be afforded any copyright protection whatsoever, one needed to put the world on notice by attaching a copyright notice to the work. While this is no longer the case, it is still customary to attach a copyright notice on copyrighted works in order to be eligible for certain types of damages. The copyright notice consists of at least elements that include the copyright symbol and/or the term "Copyright", the year of copyright, and the name of the copyright holder.

The term "Copyright" is technically not required in the copyright notice, but it may be used in lieu of the Copyright Symbol in the U.S. However, the Copyright Symbol is generally the standard identifier of a Copyright Notice, and is required in many foreign countries in order for copyright protection to attach. Unfortunately, getting that Copyright Symbol on your page can be done with varying degrees of difficulty, depending on your development environment, and display is not guaranteed. Varying HTML standards and browser specifications can conspire to turn your nice "c-in-circle" symbol into a meaningless "©", "&copy" or "&copr".

Registration
Consequently, it is recommended that any Web copyright notice use both the numeric entity and the full word "Copyright" to avoid as many of these problems as possible.

Now that you have your ownership issues squared away and you've slapped the copyright notice on your website, it's a very good idea to register your copyright with the Copyright Office. Although the Copyright Act affords you protection just for creating your work and reducing it to a tangible form, that protection is somewhat illusory without the registration. You must register your website in order to sue anybody else for infringement. Also, if you register your work within three months from the date of first publication, or at least prior to the date of some else infringing, you can collect statutory damages from the infringer. Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal. Registration makes the difference between getting nothing and getting something for an infringement. Timely registration makes the difference between a $10 award and a $100,000 award.

The registration process is not overly complicated and the fees are inexpensive at $30 per registration. You can download the forms and complete them yourself, or you can have an online registration service do it for you for as little as $100. However, since websites are relatively new, both in terms of content and technology, it may be a little tricky figuring out which copyright form to use. Generally speaking, if your website consists primarily of textual material, you will use Form TX. If your website contains a preponderance of graphics which you own and want to protect, then you will want to use Form VA.