|
Profiting from copyrighted materials
By G. Edward Kalbaugh
Rough Notes, March 2003
Contrary to popular belief, most content on Internet Web sites is owned by someone other than the Web site owner. Accordingly, it is important for Internet sites providing public access to information to understand and apply copyright law appropriately.
Essentially, copyright law affords five rights to the copyright owner. These are the right of reproduction, the right to prepare derivative works, the right to distribute copies to the public, the right of public performance, and the right of public display.
The right of reproduction allows you to make copies of the copyrighted content on your Web site. If you plan to modify any work you have licensed, you must secure a derivative right. For example, you may at some future time want to modify text or change computer code licensed as part of your original Web site development. If you plan to enable users to access or print content from your Web site, you must secure the right of distribution. For the most part, viewing content from your Web site by users is considered public performance, so you need to secure this right also. Last is the right of public display. Since the general audience for Web sites is considered "the public," you need to secure this right as well.
Securing these rights for your Web site content provides you with the freedom necessary to conduct the purpose or business intended, including engaging in profit-making activities. You should be aware, however, that many license agreements contain restrictions that prevent certain activities. Therefore, it is important to carefully review and understand any license agreement so that these restrictions do not impede your plans or goals.
Violating any of the five rights mentioned earlier constitutes copyright infringement, which can expose you to liability for civil and criminal infringement under state and federal laws.
If you plan to allow others to use content on your Web site, ensure that you have in place a copyright and conditions of use notice that grants only those rights applicable to your intended purpose. In other words, the user may be restricted to personal use only and not be able to redistribute your content to others.
Very often, the objective of Web site design is to increase interaction and retention of the message delivered. For example, insurance agencies may want to convince users that the particular agency should be their trusted insurance advisor. Other Web sites may want users to buy a particular product or service immediately from the Web site. Other sites may simply want users to call and discuss their products and services. In any case, there is almost always some form of copyright involvement when users interact with your Web site.
One of the keys to convincing users of the efficacy of your message is to convey something of value to them. This is usually in the form of content, either copied from your site or mailed to the user. It can also be a link to another Web site. If users perceive value from your Web site, they will return, thus increasing the opportunity to achieve your objectives.
One of the ways to increase the value of your Web site is to bring in content from other sites. Often you can achieve a quid pro quo by offering services to users of these other Web sites as well. If you use Web site links as part of this strategy, you must be very careful in your execution because you don't want visitors wandering off to other Web sites.
When you access other Web sites for content, keep in mind that the absence of a copyright notice does not mean that the content is not copyrighted. Copyrights arise automatically, whenever work is original and placed in a fixed medium, since the Berne Convention of 1989 made obsolete the requirement to register materials with the Copyright Office. If you want to use the content of others, you must obtain ownership or get permission.
Obtaining ownership or permission means you must first locate the owner. This can be an arduous task that may dictate giving up on certain material in favor of alternatives that offer an easier path to securing rights.
However, keep in mind that copyright law offers some exceptions that make life a bit easier. First, some material is in the public domain, which means that it is not privately owned and is available for use by the public. Second is material that is factual or an idea. Third is the use of portions of protected material for non-commercial use such as news reporting, or critique or research. Keep in mind that these exceptions are limited, so don't overextend your application of the exceptions or you may be infringing.
In conveying copyright material, you may either license or assign the material. When you license material, you transfer only those rights not specifically retained. When you assign material, you transfer all rights except those specifically retained.
When considering a license or an assignment, you many want to address the following points:
- Description of the material involved
- Which of the five copyrights are needed
- Exclusive or non-exclusive use of the material by you and others
- Use for a specific purpose or for any purpose, including distribution
- Specific rights wanted
- Fees involved
- Terms and conditions
- Ownership warranties and crediting requirements
- Indemnification for damages and attorney's fees
Licenses or assignments should be executed by properly authorized individuals and acknowledged by a notary. The acknowledgement should be recorded with the Copyright Office, which protects from subsequent transfer of the same materials.
In summary, proper attention to the five rights of copyright law can protect all parties using Web site content in the pursuit of commerce. The Internet offers unprecedented access to information, and it is important for serious business owners to protect their own information and to be protected when using information provided by others.
The author:
G. Edward Kalbaugh is a partner with Allegent Growth Strategies, a full-service consulting firm specializing in services to the insurance industry. Allegent is located at 100 Crossways Park Drive West - Suite 104, Woodbury, NY 11797. Telephone (516) 364-7034; fax (516) 364-7036, e-mail: info@allegentgsi.com; Web site: www.allegentgsi.com.
This article was reprinted with permission from the March 2003 edition of Rough Notes.
|
