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

 
 

Methods of Protection

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:

  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
  • 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 you need to think a little harder.

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. This may sound like a pain, but book publishers and movie producers have done 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 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. 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 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 "#169", "&copy" 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.