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Source Material

17 U.S.C. ยงยง 101 et seq (1988 ed. and Supp. 1993)

 
 

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.

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:

  • Is saving HTML source code to your hard drive a copyright violation?
  • 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 was an area of intense controversy when the NII first proposed that this be considered the line as far as determining copying for copyright purposes.

This is counter-intuitive, to put it mildly, and then most commentators would not consider the act of accessing a Web page to also constitute an act of copying the Web page. However, in the wake of the DMCA, such an access is considered copying, and the way around the global mass infringement that implies is the legal fiction that that there is an implied license to copy webpages to RAM for the purposes of viewing them.

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.

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. Similarly, I created this graphic: Original graphic I have posted this here completely secure in the knowledge that I am immune from prosecution for copyright infringement for having done so.

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 Vadar 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.