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MLA Position Statements and FAQs

Copyright and the Web FAQ

Disclaimer

This document on copyright and the Web is intended as a guide to assist librarians in their practice. It is based on the ideas and interpretations of the author in her capacity as a librarian and does not purport to be a legal statement or to serve as legal advice. Because of the nature of the subject matter, in which legal rights and responsibilities often are dependent upon the specific facts and circumstances involved, readers are encouraged to consult with competent legal counsel as appropriate.

The author has experienced copyright infringement with two of her Websites and has used these incidents to educate her staff and others about copyright law and the web. The author has attended several presentations by Kenneth D. Crews, Copyright Management Center, Indiana University-Purdue University, Indianapolis, (see bibliography) and has used these presentations as a framework for this FAQ.

To top of page I am familiar with how copyright law is applied to books and artwork. But what about a Website?

Copyright law is also applicable to the Web. When you create a Website, you fix your material in a tangible medium of expression. The only other requirement is that your site be an original work of authorship. This means that it must originate with you, contain at least a minimum amount of creativity, and be expression rather than ideas or facts. Extensive discussions are in progress to determine whether copyright law should be modified in light of the recent phenomenon of “virtual publishing.” Until this happens, current copyright law should be followed.

Under copyright law, there are several exclusive rights belonging to the copyright holder. It is interesting to apply these rights to the Web. First, the copyright holder has the right to reproduction, including the right to mount a Website onto a server. While it may be permissible for a Website user to make a single printed copy of site content for later reading or to bookmark it for reference, there is some question whether “caching” the Website is an infringement.

The copyright holder also has the right to distribution, i.e., providing access to the Website to users. He or she also has rights over the creation of derivative works. Some people have interpreted this to mean converting content from analog to digital, turning printed text into html and uploading it, or downloading an image and making a transparency. There are also rights to public performance and display. For the web, this could include putting music clips on a Website or displaying scanned images of paintings or sculpture.

Finally, there are moral rights which protect against the distortion or mutilation of materials. This is quite applicable to the Web, particularly with modern computer technology that allows easy manipulation of images. However, the most common scenario of a copyright holder’s rights being violated is the use of his or her materials, whether created using traditional or electronic formats, incorporated into another person’s Website without permission.

To top of page How does a Website become “protected” by copyright law?

Like books and artwork, there is automatic protection for your Website when it is created. There are no longer requirements for notice or registration. However, to be on the safe side, particularly if your Website content is unique, you might want to register your site content with the U.S. Copyright Office. The content should be registered as a literary work.

This may be problematic if the content of your site will be changed routinely. If you intend to register your site, try to plan ahead. Perhaps your “main page” can remain relatively unchanged, while subpages can be revised. Then, register at least the main page. A cheaper alternative, particularly if you will be changing your site, is at least to provide a copyright notice or symbol as part of your site. That negates the “innocent infringer” defense if you do sue someone for copyright infringement. Subpages can be protected somewhat by including a “back” button to your main page, so that if the subpage is misleadingly included as a link from another person’s Website, users will be routed back through your page.

To top of page There is nothing special about the content of my Website, just information about the library. However, I designed some unique “buttons” as links in my Website and I also have an interesting arrangement that no one else has tried. How can I protect this?

Copyright protection of a Website can extend beyond just the content to include the arrangement of the site, the creation and use of graphics, audio and video, and the collection and annotation of links, if you can show evidence of purposeful and original selection of the links you have chosen. If you believe your Website is truly unique, it would be wise to document the steps in its creation, including your selection criteria for links and your rationale for the arrangement of the site.

Once you have stabilized the content of the site, you might consider registering the content with the U.S. Copyright Office. Then even if the text changes, you may have preserved protection at least for your site design. It is believed that saving the HTML source code to reuse as a template for other Websites may be copyright infringement. If you see a unique source code you would like to use or an attractive site you would like to use as a model, it is suggested that you get permission. You can increase the likelihood of getting permission by offering to give credit for the source code or site design on your Website.

To top of page I’m creating a Website with links to other organizations. I’d like to use their “logos” as buttons.

Currently, the inclusion of links on a Website is not considered a violation of copyright law. This is viewed much as a bibliography in a book because you are merely assisting the user in finding other relevant materials. You should be careful not to have links to sites you suspect may contain materials that lack the copyright holder’s permission.

However, the use of logos as buttons is probably a violation of trademark law. Get permission, create your own buttons, or use “text only” to create the links.

To top of page I’m part of a listserv on bibliographic instruction. I’ve got several substantive email messages I’d like to incorporate into my Website and I’ll be forwarding these to colleagues as well.

Email messages are subject to copyright law as well, since they are original works of authorship fixed in a tangible medium of expression. By either incorporating them into your Website or forwarding them on to colleagues without permission, you have probably committed copyright infringement. It would be best to get permission.

On the other hand, those sending email can provide a note as part of their submission that either gives people permission to forward or use their message or advises them of copyright protection. Many discussion lists have policies governing the forwarding and use of email messages. Be aware of these before you post to a list. If you are sending email containing original material that you want to protect, make a print copy and date it.

To top of page I think I’ve twice been a victim of copyright infringement. What can I do?

First, someone reproduced my library Website with very few changes and provided a different URL. In examining his site, I noticed that he used the same arrangement, the same links, including access to some of our databases, and the same text. All he did was substitute his own color scheme for mine (purpose squares instead of red dots as bullets). Second, someone FTPed my legal history site into his intranet, claiming it was for “demonstration” purposes. I was quite surprised to see significant sections of my content, including illustrations, integrated as part of his site with no mention of my work and in contravention of our agreement.

Again, copyright law may protect not only the content of the site, but also the arrangement, the graphics, and the selection of links. Access to many databases is under licensing agreements with the database vendors, so the first infringer may have violated the terms of the agreement and be liable under contract law as well as copyright law.

Although it may not be worth your time and energy to pursue litigation, certainly a letter to the infringer, from you, your attorney, or a person of authority in your organization, may be all that the individual needs to persuade him to remove his site. Also, a note on your own site to indicate that yours is the original and valid site would be helpful to alert others about the impostor site. Extra vigilance should be used in designing links to databases to protect the library’s contractual relationships with vendors and to keep control of and training for these services under the purview of the library.

In the case of the second infringer, it was the failure to acknowledge who did that work on the legal history sections of the site that was most hurtful. A letter to the infringer requesting that credit be given for content authorship would be one solution. However, due to the deceptive practices used to capture and use the site content, it was more prudent to resign from the project.

To top of page I created a Website on reference sources for our library. How do I protect it through copyright?

If you created the Website as part of your duties as an employee of the library, you are not eligible for protection under copyright law. Under copyright law, this would be considered a “work for hire,” because it was done under the auspices of your employment. However, it would be prudent for you to work with your organization in this matter.

Educate your employer about the need to protect its investment in your work and assist with registering for copyright protection. As an alternative, put a copyright notice on the site, with your name as author, and a statement that the site was created on behalf of your organization. This warns the potential infringer and provides a contact person for those who wish to obtain permission to use content from the site.

There is a danger in using outside agencies or individuals to design and implement your organization’s Website, because they will be considered the copyright holder of the site. Have a contract with the designer that clearly transfers copyright and provides your organization with rights over the content, design and portability of the site.

To top of page I’ve found lots of interesting artwork on the Web I’d like to use in my own Website. Since it is on the Internet, it must be free for anyone to use.

The artwork may be free in a monetary sense, but not according to copyright law. Again, even without registration and notice, copyright protection extends automatically to original works fixed in a tangible medium of expression. This includes artwork on Websites. Before you load text, graphics or other materials onto your Website, you should try to obtain permission from the copyright owner. Most Websites include a link to the author’s email or a mailing address.

Works that are in the public domain, such as government publications or items which due to their age are no longer eligible for protection, do not require permission to be added to your Website. However, to be on the safe side, assume that an item on the Web is protected until a thorough investigation proves otherwise.

To top of page But what about “fair use?”

You may be able to include a limited amount of text or artwork from another Website, particularly if your Website is for nonprofit educational purposes. Of course, as with traditional print materials, the concept of “fair use” is fact sensitive and there is no bright line between what is fair use and what is a violation of copyright law. Reasonable people, including judges, can differ on the interpretation and application of fair use guidelines. Clearly, the fact that the use of the material on a Website is for education rather than profit is important in the analysis.

However, in addition to looking at the purpose of the use, a court will also look at the other three factors: the nature of the material (whether it is creative or fact-based), the amount of the material used, and the effect on the potential market. While one could argue that the making of a single copy, whether it be a journal article or a Web page, has little effect on the market, publishers and creators are concerned about the digital environment, because it is so easy to distribute materials widely with impunity. This global distribution could impact the market significantly.

If your site is accessible by the public, it may be harder to prove that the site was for educational purposes only, particularly if it is on a “hot topic” that many people beyond your course would be interested in. In other words, your intent in creating the site may differ greatly from the reality of who will be using the site. Limiting access to your site to only students, teachers, and faculty through firewalls or passwords, for example, may strengthen your case in the analysis of this factor. Other techniques should be the use of a counter to prove minimal usage, having a time limit on the Website’s existence, or refraining from advertising the URL or the availability of the site in printed sources or through search tools on the web.

In addition, try to provide as much “value-added” content to the site as possible. If you use several lines of poetry, add analysis and background. This may then be considered “transformative use” because it changes the material to something new and creates utility. Also, look for ways to bypass copyright protection. Describe or summarize an article rather than including the article text itself. If you need illustrations, try to find photographs or artwork already in the public domain. This may be quite easy for landmarks and historic figures.

It is important to remember that citing the source of the material is of no legal consequence if you are trying to protect yourself from a claim of copyright infringement. Proper citation is important for intellectual honesty to prevent charges of plagiarism and academic misconduct.

To top of page I’ve found old photographs I’d like to use on my Website, but I cannot locate a copyright holder. What can I do?

First, be ready to show due diligence in your search for the copyright holder. Document all steps in the search process. Be sure to check whether the photographs are registered with the U.S. Copyright Office. If not, even if a claim of copyright infringement is brought, the damages will likely be limited and will not include attorney fees, making it more risky for the copyright holder to pursue the claim.

The use of the photographs is subject to a risk-benefit analysis. You must weigh the likelihood that a copyright holder still exists who would pursue a claim of copyright infringement against the potential benefits of having the material as part of your Website. Remember that with photographs, it is the photographer who holds the copyright, not the subjects, although this is not necessarily so for photographs taken before 1978.

To top of page What else should I do for maximum legal protection of my site?

This is outside the copyright law, but you might put a disclaimer on a site which contains anything beyond basic, readily obtainable information. A disclaimer is particularly important on health, legal and investment “advice”-type pages, including a warning that the user should seek competent advice from a professional rather than relying on the Website alone for information.

If access to databases is provided by your Website, a brief note that these are subject to licensing agreements and who can have access can be helpful. Be sensitive about what you include on your Website to avoid charges of defamation or invasion of privacy. Ask yourself if you would include the same information or items as part of printed material or a library display. Have standard formats for your sites, have a “content” policy, or have a panel of reviewers who can approve site design and content.

To top of page Bibliography

Ardito, Stephanie C. Electronic copyright under siege. Online 20:83-88, Sept/Oct 1996.

Crews, Kenneth D. Documents into digital: innovations in library technology and copyright trends. INCOLSA Workshop, June 3, 1997.

Erickson, John S. Can fair use survive our information-based future? URL: http://picard.dartmouth.edu/FairUseInfoFuture.html, 1995.

Field, Thomas G., Jr. Copyright on the Internet. URL: http://www.fplc.edu/tfield/copynet.htm, 1996.

Jaszi, Peter. Caught in the net of copyright. Oregon Law Rev 75:299-307, Spr. 1996.

Kuhn, Benjamin R. A dilemma in cyberspace and beyond: copyright law for intellectual property distributed over the information superhighways of today and tomorrow. Temple Intl and Comparative Law J 10:171-210, Spr. 1996.

Litman, Jessica. Revising copyright law for the information age. Oregon Law Rev 75:19-48, Spr. 1996.

Magan, Mike. Internet law covered by existing caselaw. Indiana Lawyer, pp. 21-,Jan. 22-Feb. 4, 1997.

Perritt, Henry H., Jr. Law and the Information Superhighway: Privacy, Access, Intellectual Property, Commerce, Liability. New York: John Wiley, 1996, pp. 416-68.

Stallman, Richard. Reevaluating copyright: the public must prevail. Oregon Law Rev 75:291-97, Spr. 1996.

Web law FAQ. URL: http://www.patents.com/weblaw.sht, 1996.

Weiner, Robert S. Copyright in a digital age. Online 21(3):97-102, May/June 1997.

Yen, Alfred C. Entrepreneurship, copyright, and personal home pages. Oregon Law Rev 75:331-37, Spr. 1996.

To top of page Author

Prepared Janauary 1998 by
Sara Anne Hook, M.B.A., J.D., A.H.I.P., Head Librarian, Indiana University School of Dentistry

For further information, contact Mary Langman, 312.419.9094 x27.

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