When we think of “property,” we are likely to think first of land and buildings. That is called real property or real estate, and we are all very comfortable with the idea of ownership of real estate. If we want to use land or a building that belongs to someone else, we’re likely to have to pay rent or make some other arrangement. Similarly, we can prevent people from using our real property, or require that they pay to do so.
Another kind of property is personal property, or chattel. Your car, your furniture, your sound system, your clothes – almost anything tangible that isn’t buildings or land – is personal property.
This reading is concerned with a third kind of property: intangible property that comes about as a result of the creative process. This is intellectual property. Intellectual property has legal protections similar to those of real and personal property. United States law provides protection in the form of patents, trade secrets, trademarks, and copyright. The protection of intellectual property that is of most interest to web developers is copyright protection.
Copyright protection may seem a little strange because intellectual property is expressed in tangible form, and the tangible form might be considered personal property. Let’s look at an example: Suppose you buy a copy of Executive Orders by Tom Clancy. You own the book – the paper, covers, and ink. You can read it, lend it, sell it, or do most of the other things you can do with personal property. However, you don’t own the story. You cannot legally make copies of the book, “perform” it by reading it in public or making a motion picture or audio tape, or make a derivative work. According to Barrett (1998) “transfer of the physical embodiment of a work of authorship does not transfer the copyright.” Of course, if you own intellectual property, you can sell it. If you write a best-selling novel, you can certainly sell the movie rights. Doing so requires a contract that expressly transfers some or all of your interest in the work. A movie studio cannot simply buy a copy of your book and make a movie from it.
Copyright law in the United States has its foundation in the Constitution. The founding fathers recognized the value of stimulating the production of creative works and distributing them as widely as possible. (Barrett, 1998). Copyright allows creative works to be distributed while allowing the person who created the work to own the intangible result of the creative activity and to profit from it.
Copyright is for a limited period of time, but it is a long time. For work created on or after January 1, 1978, it is the life of the author plus 70 years, or for up to 120 years for works of corporate authorship. (Gasaway, 2003)
You may have noticed that this document has a copyright notice. For the life of the author plus 70 more years, with some exceptions described below, no one may use it without permission. That would be true even if there were no copyright notice. The act of creating a work of intellectual property in tangible form creates the copyright. Copyright law refers to “fixing” the creative idea in a tangible medium.
Any creative work can be protected by copyright. So, written works of fiction and non-fiction, poetry, drawings, paintings, sculpture and photographs, written and recorded music, motion pictures and recorded television shows, audio tapes, architectural and design works, and fictitious characters can all have copyright protection. Web developers will want to know that computer programs and the coding behind web pages can have copyright protection.
The two criteria are that a work must be creative, and that it must be “fixed” in a tangible form. Any work that meets both criteria can have copyright protection.
Copyright is significant to web developers both because you will want to use the work of others and because you will want to protect your own work.
As a web developer, there will be times when you want to incorporate the work of others into the pages you create. This may be a set of icons, photographs, sounds or computer code. Examples of all of these are widely available. The principle rule for web developers is, just because you can get it doesn’t mean you can use it. Remember, copyright exists at the moment a creative work is fixed in a tangible medium. In the United States, the maker of a creative work does not need to do anything to secure copyright in that work; creation and representation in a tangible medium are enough.
The most common way to acquire the right to use a protected work is by license from the copyright holder. Sometimes the license is granted in return for payment. You can buy stock photographs and recorded music with a license that allows you to re-use them in your web pages. What you’re really buying is a license to copy and re-use the intellectual property of another. Usually it is a non-exclusive license; that means they can sell the same photograph, music, icon set, or whatever to others and you may find it on other web sites. You can buy exclusive licenses, but expect to pay a lot more for an exclusive license.
A surprisingly large number of people create for the joy of it and will allow others to use their work without charge. Sometimes this is very informal, and at other times there will be a formal license agreement. In either case, the person who made the work retains copyright and you must comply with any conditions set by the owner to use the work legally.
One example of an informal arrangement is the graphic artist who publishes a set of icons on the web and invites anyone to use them, but requires a link back to the icon site. You may legally use the icons if you provide the required link, but not otherwise.
More formal arrangements include the Free Software Foundation’s GNU General Public License and several Creative Commons licenses. As with the informal arrangement, ownership remains with the person who created the work, and you may legally use it only if you comply with the terms of the license. So, it is important for you to understand what those terms are before using work licensed in this way. Happily, these licenses are written in plain English and reading them will generally provide the information you need. If you are planning to use the work of others under a free license in an extensive or expensive undertaking, legal advice is probably appropriate.
Copyright is for a fixed time, and it was not always as long as it is now. Works whose term of copyright protection has expired are said to be in the public domain. The maker of a creative work may renounce copyright in the work and declare it to be in the public domain even before the expiration of the copyright term. You may generally use works in the public domain without permission, license, or payment of fees. See, for example, Gasaway (2003) for information about when a work becomes a public domain work. However, owners of very famous works in the public domain have sometimes claimed that their property right in the tangible expression of the work is sufficient to prevent others from making and using copies without payment of a fee. This is another case where legal advice may be appropriate.
Finally, you may be able to use portions of a protected work without payment, permission, or license under the doctrine of fair use. This doctrine allows use of protected work for criticism, commentary, news reporting, or teaching. (Barrett, 1998) There are four tests for fair use:
Whether a use of protected work falls under the doctrine of fair use is decided on a case-by-case basis. Except for short quotations for criticism or commentary, it may be better not to rely on fair use as a defense for incorporating copyrighted material into web pages that you develop. (In 2007, a mother published on the Web a video of her small child dancing to a bit of a Prince song. This is arguably fair use, but the music publisher ordered the operator of the Web site to remove the video as infringing the publisher's copyright.)
The consequences of violating copyright range from being required to stop infringing to substantial financial penalties, loss of ISP service, public ridicule, and even criminal charges. If you use material owned by others, you may get a letter from the owner ordering you to “cease and desist” using the copyrighted work, and possibly asking for payment. Particularly for music and motion pictures, you might instead get served with a lawsuit which may be expensive to defend or settle. One accomplished photographer publishes a “Hall of Shame” web page listing people who have used his photographs without permission. In egregious cases, you might find yourself subject to criminal charges.
There’s a new threat since the passage of the Digital Millennium Copyright Act. If a hosting company is given notice that infringing material is stored on their servers, they’re required to remove it. That may mean removing your Web site! (The DMCA is further discussed in its own section below.)
If you are developing work for a client and the client provides photographs, artwork, music, writing, computer code, or other material that may be covered by copyright, it may be wise to ask the client to tell you in writing that the client has the right to use that work in the way contemplated. Similarly, if you acquire intellectual property on behalf of a client, be sure to pass on copies of the relevant licenses and emphasize the importance of keeping them. Keep copies yourself, too.
Copyright in a creative work exists as soon as the work is “fixed” in a tangible medium. Legally speaking, as soon as you save a newly-created web page to disk, take a picture with a camera so that the image is stored or recorded on film, or save a graphic to a disk file, it is protected by copyright. The owner of the copyright is usually the person who made the work; sometimes it may be the person who paid to have the work created.
If you do not care whether others use your work, the fact that copyright exists is unimportant. If you do care, either because you want to preserve your rights in your work or because you specifically want to encourage others to make use of it, you should take the step of declaring your copyright. You do that by marking your work with the word “Copyright,” the C-in-circle symbol, the year of first publication, and the copyright owner’s name, like this:
Copyright © 2007 by Bob Brown
The C-in-circle symbol is generated on a web page by the HTML entity © or in XML, use Unicode code point 169: © to get a C-in-circle. Attach a copyright declaration to each protected work and position it so that it gives reasonable notice of your declaration of rights in the work.
(Note that sound recordings should be marked with the P-in-circle or “phonorecord” symbol, and not the C-in-circle symbol. The hexadecimal Unicode code point for this symbol is 2117. Expressed as a character entity, it's ℗.)
Declaring your copyright puts others on notice that your work is protected by law. That will have a deterrent effect all by itself. It also denies a defense of innocent infringement to someone who infringes on your rights.
It is not necessary to register your work to declare your copyright with a notice like the one above. However, if a work was expensive to produce or is expected to have significant economic value, it would be wise to register it with the U. S. Copyright Office. You can find forms and information, including fee schedules at http://www.copyright.gov/.
If you are paid for developing a creative work, the copyright may not belong to you. Under the doctrine of “works made for hire” the person or organization that paid for the work may own it, and not you. Intellectual property that you create as part of employment generally belongs to your employer. If the relationship is that of an independent contractor, things may not be as clear-cut.
If you are doing contract work, the easiest way to deal with any possible ambiguity is to decide beforehand whether your customer gets all rights to the work (a work made for hire) or only a license to use work which you continue to own. Then, include your decision in your agreement for web development. Most clients are likely to be uncomfortable with the idea that you will have ownership of “their” web pages, so unless you’re planning on breaking new ground in web development, you will likely want to agree that you will create work made for hire that will belong to the customer when it’s paid for.
If you produce programs, images, or other intellectual property that you want others to be able to use, you must decide whether you want to charge for the use of your work or allow it to be used without charge.
If you want to charge for your work, you will sell a license to use it. Probably you will sell a “perpetual, non-exclusive” license. “Perpetual” means the licensee can use your work forever, subject to any other limitations in the license, for one payment. “Non-exclusive” means you can sell the right to use your work to many people. You will probably need help drafting such a license, at least the first time. If your work represents a significant advancement in the field, or there was substantial effort involved, you may want to hire a lawyer with experience in intellectual property law. There are also legal self-help books, such as the Nolo Press book listed in the bibliography, that contain forms and example documents. In any case, if you expect to make money through the sale of your work, it is important to be clear about what rights you are licensing.
You might also want to allow others to use your work without charge while making it clear that you are the owner of the work. You can offer a free license to your work in several ways. Two of the most popular are the GNU General Public License and the Creative Commons licenses. Both are listed in the bibliography. The Creative Commons licenses are a collection of six licenses with different restrictions. The least restrictive is the attribution license. It allows others to use your work, but only if they give credit to you in the way you require. If you want to share your work with others without charge, one of these licenses may be preferable to simply being silent about how you want to share your work. An explicit license tells others that you want to share your work, and clearly defines the terms under which they may use it.
The Digital Millennium Copyright Act implements two World Intellectual Property Organization treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA significantly expands the scope of copyright of works embodied in digital media. It also provides avenues of recourse that were previously unavailable to copyright holders, and which may affect operators of information systems.
The DMCA treats digital works very differently from printed books. Books may be lent by individuals or libraries, rented, or sold. According to Lesk (2003), the courts have ruled that any delivery of digital content involves copying. The DMCA contains specific exemptions for certain temporary copies, such as digital material in transmission and intermediate recordings made by broadcasters. It is extremely important that holders of the copyrighted material of others, especially in digital form, understand their rights and limitations. The DMCA provides for some novel remedies in addition to criminal prosecution.
The DMCA limits the liability of Internet service providers (ISPs) and search engine operators for publication of work in violation of copyright. This limitation applies if the ISP or search engine operator did not know of the violation, did not receive financial benefit directly attributable to the violation, and expeditiously removes offending material when given notice of claimed infringement. A similar provision applies to operators of computer systems for files stored by users of the systems.
The removal provision is important to web developers because it means your site (or your customer’s site) can be taken down without warning if someone claims copyright infringement. This is troubling to advocates of civil liberties because only notice of claimed infringement is required; it is not necessary that actual infringement be proven.
A provision of the DMCA that allows issuance of administrative subpoenas in the case of claimed infringement withstood a challenge by Verizon.
Copyright protects creative work fixed in tangible media, but it is not the only form of protection for intellectual property.
Trademarks identify goods and service marks identify services. Both are registered by the Patent and Trademark Office, and have legal protection for as long as they’re actively used. A trademark can be a name, a symbol, or even a particular combination of colors. The “trade dress” that distinctively identifies Kodak products has trademark protection. Sometimes fictional characters are trademarked. If you are going to use a name, symbol, or trade dress that may be the property of another, be careful and get legal advice when appropriate.
Patents protect processes, designs, and inventions, again for a fixed term. The U. S. Patent Office has issued patents for some computer programs. However, it is unlikely that web developers will run afoul of patent infringement.
Trade secrets, of which the formula for Coca-Cola is a famous example, have legal protection in that one who wrongfully discloses a trade secret can be sued.
This reading provides general information about your intellectual property rights and the rights of others. It isn’t legal advice and shouldn’t be used as a substitute for legal advice. My own advice is that you need a lawyer when substantial sums of money are involved, if you are sued or receive a credible threat of a lawsuit, or if you are seriously considering filing a suit.
Lawyers can help in you in two ways: they can help keep you out of trouble, and they can try to get you out of trouble that has already begun. It is generally far less expensive to stay out of trouble in the first place than to get out of trouble that has already started.
The area of intellectual property law that is likely to be the most troublesome to web developers is copyright law. With respect to using the works of others, it is important that you have a clear legal right to do so before including them in your work.
Copyright law provides valuable protection for your own work or work you make for clients. It is important that you display a proper trademark indication on such work. Work that is particularly valuable or expensive should be registered with the Copyright Office.
If you intend to share your work with others, it is important that you be specific and explicit about the terms under which it may be shared.
Barrett, Margareth, Intellectual Property. Aspen Publishers. 1998.
Gasaway, Lolly, 2003. When U.S. Works Pass into the Public Domain, retrieved August 14, 2007 from http://www.unc.edu/~unclng/public-d.htm.
Lesk , M. 2003. "Copyright enforcement or censorship: new uses for the DMCA?" IEEE Security and Privacy, March/April 2003, 67-69.
Fishman, Stephen, 2002. Web & Software Development: A Legal Guide, Third Edition Nolo Press.
Nolo Press publishes a full line of legal self-help books. This one started out as a general-purpose book on software and the law and gained some Web-specific content in the third edition. Reading it will help you learn more about what rights you have (and don't have) in the software you develop. It'll also help keep you infringing the rights of others and so getting into legal trouble. The book includes a CD-ROM with copies of the many forms. About half the book is devoted to intellectual property law. The rest covers employment, consulting and development agreements, and software licenses. This book will help you do a lot for yourself, and it will help you know when you need a lawyer. The last chapter provides solid advice on finding a lawyer if you need one.
Free Software Foundation, 2007. GNU General Public License
This document is licensed under the Creative Commons Attribution 3.0 United States License. You are free to copy the work for commercial and non-commercial use, including use for profit. Each copy of the work must carry this notice: "Copyright 2007 by Bob Brown."
Last updated: 2015-08-16 14:00