A well-developed and informative website can be a significant asset, and many businesses invest heavily in designing their sites and developing online content. Others, however, may seek to capitalize on the hard work and investment of their competitors by appropriating their competitors’ content or design. Thankfully, you can take proactive steps to help protect your website from misuse and make legal recourse available if, despite your best efforts and warnings, your rights are infringed. This could involve assertions of both copyright protection and your website’s terms of use.
Copyright
Copyright is the exclusive right to produce, reproduce, perform or, if a work is unpublished, publish the work or any substantial part of it in any material form. Copyright subsists in original literary, dramatic, musical, and artistic works as well as compilations thereof. Website designs and website content may therefore be protected by copyright provided the works are original. For example, the text of a webpage may be a literary work, photos or illustrations may be artistic works and a site’s visual layout and design may likewise attract protection as an artistic work. Your website in its entirety may also be considered a compilation of literary and/or artistic works.
Copyright subsists in original works upon creation and is then owned by the author, subject to certain exceptions or the assignment of the right to another. In several jurisdictions, the copyright in works created in the course of employment is owned by the employer and not by the employee. However, this may not apply to works authored in whole or in part by independent contractors. Thus, if you have designed or built your website with the help of an independent contractor, absent an agreement to the contrary, you may not be the sole owner of copyright in your website or its content.
Regardless, having rights does not necessarily mean they will not be infringed. So what can you do to deter or address infringement of your copyright? For one, identifying copyrighted content as being just that can help. While there are typically no formal rules for indicating copyright in a work, the indication most often takes the form of the copyright symbol, ©, followed by the name of the author and the date of publication. This helps communicate to visitors to your website that you are informed of your rights and less likely to tolerate infringement—in other words, you are a difficult target. In some cases, something as simple as notice can be all that is necessary; many individuals are simply not aware of copyright and the rules governing the reproduction of content found on the internet.
Although copyright subsists upon creation of a work, there are advantages to registering copyright. For example, in Canada, copyright registration can serve as proof of copyright subsistence and ownership, which may assist the registrant in a dispute. A Canadian copyright registration may also, in some circumstances, expand the list of available remedies for copyright infringement. Aside from its legal advantages, registration tells the public—as well as competitors, collaborators and business associates—that you are serious about and invested in the protection of your content.
Finally, directly asserting your rights is also an option—be that through a cease and desist letter or by commencing legal action. While disputes involving online content can often raise jurisdictional issues, note that, under the Berne Convention for the Protection of Literary and Artistic Works, works authored in one signatory country are protected under the copyright laws of almost 180 other jurisdictions. If you believe that the copyright in your website or any of its content is being infringed, an intellectual property lawyer may help you determine the appropriate course of action.
Terms of Use
Terms of use can form a contract between you and the users of your website. The complexity of the terms may vary depending on the nature of your website; however, they commonly address each party’s obligations vis-à-vis the site and its content, including the website owner’s intellectual property. Terms of use do not guarantee your content will be safe, but they do provide clear notice of your rights and what use can and cannot be made of your content. Further, terms of use give you, the website owner, an additional cause of action under which to pursue legal recourse for infringement—namely, breach of contract.
The enforceability of your website’s terms of use under contract law, however, may depend on how they are presented to users. You should consider whether users of your site are provided sufficient notice of the terms and an opportunity to read them before proceeding further and using your site. Courts in some jurisdictions may make a specific distinction between “browse-wrap” and “click-wrap” agreements. The former rely on users’ continued navigation of your site as consent to the terms of use, while the latter requires users to indicate consent through, most commonly, checking a box indicating agreement to the terms. Generally, a click-wrap agreement is more likely to result in users of your site being bound by its terms.
Altogether, no action can guarantee that the content of your website will not be copied. However, many simple steps can demonstrate that you understand the value of your content and are committed to protecting it. Doing so may both dissuade infringers and place you in a more favourable position should legal action be necessary.