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Law and the Web

Last updated Oct 17, 2003.

Because of its global nature, the Web is often perceived as a lawless environment. But that's inaccurate because the Web and the people who build and use it are influenced by laws within governing countries. There are many concerns that have emerged regarding Intellectual Property, and this affects you directly as you build Web sites. Questions such as who owns the content; how to protect that content; and how to protect domain names, logos, and other aspects of sites are common. This Guide will provide you with basic strategies about how to protect yourself and your clients.

About Intellectual Property

It is helpful for Web designers to understand the basics of Intellectual Property. In the United States, Intellectual Property is protected in three primary ways: Copyrights, Trademarks, and Patents. Each of them differs in detail, and it is important to understand their differences.

Copyrights

The copyright branch of Intellectual Property law covers "original works of authorship," including literary, dramatic, musical, artistic, and other intellectual works. Copyright exists for an intriguing reason: neither the creator nor the public should be able to appropriate all the benefits of a work.

The spirit here is to ensure that the creator benefits, the public can access the creator's work to build upon and enjoy, and learning and innovation are promoted. A win-win situation, if you will, that allows creators of work to receive accreditation and even financial gain for their work, but still allows the public to access the work and ultimately have it to build upon.

Copyright ultimately benefits the public while affording certain protections to a work's creator. This was an intentional goal of the Founding Fathers: to promote education and benefit the public good.

To achieve this, the government put together the fundamentals of our copyright laws as follows:

  • Creators have the exclusive right to make certain uses of their work for a limited time.
  • Anything beyond the time explicitly reserved for authors is granted to the public.
  • Eventually, all uses of a work will be granted to the public (placed in "public domain").

At the time of this writing, a copyright can last up to 70 years after the death of the creator.

NOTE

You can learn more about the origin of these laws and their current status at the U.S. Copyright Office, a link for which appears in the resource section of this guide.

The first thing to understand about copyright from a practical sense is that a work is copyrighted as soon as it's entered into any tangible medium. Whether I write my weblog entry, poem, or ad campaign on a cocktail napkin, etch it in stone, or copy it to disk, that work is considered to be copyrighted. Copyrights do not require registration. This is a very significant aspect of copyright law in the U.S.: You don't have to register your work for it to be copyrighted—you need only to create it in a tangible form. However, registration does provide you with clearly defined legal protection, so it's considered wise to register your work.

What does copyright cover? Any works such as articles, books, films, book outlines, weblog entries—any creative work that you create and place into a tangible medium is covered. What isn't covered are the factual elements within your work. So, if I write a weblog post about file sharing and I refer to case law related to the issue, my weblog entry itself is copyrighted, but the facts themselves are not.

And, of course, you'll want to know about what's fair for you to use and for others to use from your site. The bottom line? Using someone's copyrighted work without permission is not allowed. It is always, always, a good idea to get permission when you use another's work or create your own.

Are there exceptions? Yes, and this is what is known as fair use. Fair use allows a narrow window into the use of another's copyrighted work, but narrow means narrow! Fair use is very specific. Some examples are the following:

  • Quotations (limited in length and with full attribution)
  • Parodies
  • Photocopies for non-profit and educational use
  • Home videotaping of television programs

Because fair use is so specific, getting permission still remains a good safety net. And again, if you have questions about someone using your copyrighted works or how you are using someone else's copyrighted works, see an attorney who specializes in Intellectual Property issues.

Patents

Another primary area of Intellectual Property law is patent law. Patents exist to cover inventions, protecting the inventor(s) in the same spirit that copyright protects authorship.

Typically, patents don't affect Web designers per se, but they can affect hardware and software inventions. As a result, patents do influence the Internet and the Web, as can be seen with the Eolas v. Microsoft lawsuit, in which Eolas successfully sued Microsoft regarding technology related to plug-in mechanisms used by IE for which Eolas owns a patent. The impact of this sort of dispute can radically affect the way Web designers work.

Because so many people are interested in seeing Web technologies remain open standards, there's a lot of concern about patents and how they are affecting the Web. The W3C has a Patent Policy Working Group, which serves to collect information, debate policies, and work to find open standards solutions to critical technologies.

NOTE

See the Online Resources section for information about the Working Group.

Trademarks

The third branch of Intellectual Property law is trademark law. According to the U.S. Patent and Trademark Office, a trademark is a "word, name, symbol, or device" used in the trade of goods. So, your unique logo can be trademarked, as can your company name. Trademark rights protect only the symbol or name; they do not protect the goods and services offered. So, you can protect your logo by seeking a trademark, but you cannot prevent another person from selling the same goods that you are selling.

Obtaining a trademark can be a long process, but it is relevant for those Web designers interested in protecting visual symbols related to their or their client's trade, as well as protecting the company or product name(s). Having a trademark on such a name is also helpful in domain name disputes, an issue about which Web designers should be aware.