With the increasing amount of piracy on the Internet, individuals and businesses are justifiably wary about how to protect the content they place on their websites.  If you or your company has created a website, and probably invested a lot of time and money doing so, having your content stolen and used by others can be disastrous.  This month's newsletter discusses a couple of the main ways you can fight back and protect yourself.

Methods of Protection

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, user-unfriendly, and in many cases, inaccurate.

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:

1. Ownership
2. Notice
3. 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
• Video
  
• Script
• Data
• Code

If you created everything on the site, you can be reasonably comfortable in your 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 there is a good chance you lack ownership of all of your website's elements.

For every item on your website, you need to have created it on your behalf, or have some mechanism to transfer the ownership to you.  Sound like a hassle?  Book publishers and movie producers have been doing this for years.

Check the text; did you write it, or did an employee or an outside contractor? If you did, and you did not otherwise assign the rights to someone else, you're in good shape. If an employee did it during the course of his or her work, your company owns the work as a "work made for hire."  In any event, it makes good sense to have an employee agreement that explicitly assigns the employees' work to you.

If a third party did it, then you need to have an explicit written contract that states that work was done as a work for hire or that all copyright is assigned to you. Otherwise, you merely get a license to use the content on your website, while the third party gets to reuse it somewhere else.

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. 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.

Notice

As evidenced by the preponderance of websites bearing them, it is generally a good idea to place that copyright notice on your website. Prior to 1989, 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.  It also lets everyone know you wish to protect the copyright in your work.

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 "#169", "©" or "&copr".

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.

Registration

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.

Since websites can contain a variety of media types, 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.