Website Copyright Infringement – how to win?
Website copyright infringement is one of our specialisations within the specialisation of copyright law. I’ll come back to what this first sentence means shortly.
This article is a brief discussion on the specialist area of website copyright infringement. To a non-practitioner the area of intellectual property law can be confusing. Different fields of intellectual property such as trademarks, copyright, patents, design rights, are specialist areas of practice. Additional specialisation is necessary in a particular field. Within copyright law specialisation in certain commercial fields is desirable to build up skills and practical knowledge in that specific field.
Our firm focuses on copyright and trade mark law as they relate to information technology, digital media, e-commerce, fashion and retail businesses.
Our clients are mostly fabric and fashion retailers, digital entertainment companies, marketing and advertising enterprises, technology businesses with licensees in Europe, and the United States.
Specialisations within the specialisation
To understand what is meant by “specialisations within the specialisation”, we need to go back to some of the basics. If you already have a working knowledge of copyright law just bear with me through the following. Only specific works are copyrightable. These works are set out in the Copyright, Designs and Patents Act 1988 (the “Act”). In fact, at a very high level, the Act is the primary source of UK copyright law, although for certain detailed issues statutes prior and after the Act are important. Additionally, as the UK is a common law country, case law (which is fluid), and authoritative text books should also be consulted.
So s1(1) of the Act sets out the following works as being capable of copyright protection.
“(a)original literary, dramatic, musical or artistic works,
(b)sound recordings, films [or broadcasts], and
(c)the typographical arrangement of published editions.”
Leaving aside the issue of “originality” the “Works” are literary, dramatic, musical, artistic, sound recordings, films [or broadcasts], typographical arrangement of published editions. A lawyer might specialise in fine art. Such a lawyer would be an expert in the area of “artistic” works. Naturally, artistic works do not just involve fine arts but that is certainly one of the specialisations within “artistic” copyright works. Such a lawyer would represent artists, art dealers, auction houses and probably marketing enterprises. So a lawyer might specialise in fine art within the specialisation of artistic works within the specialisation of copyright law.
Website Copyright Infringement
One of the areas of specialisation of our firm is in website copyright infringement. Website copyright infringement falls within our specialisation in electronic, digital media, and copyright law. The area of website copyright infringement is one of the most exciting of all copyright infringement cases. It is constantly evolving through the growing number of IPEC cases, and the increasing importance of Internet business.
Whilst it is trite law that literal copying of photographs (electronic images are included within the definition of photographs in s4(2) of the Act), text, design notes, graphics, databases, music files, audio/visual files, code are all copyright protected. When it comes to website copyright there are lots of “live” issues including those set out below.
Website Design and layout
1. The issue of whether there is a separate work in the design of the layout of the website is still “live”. The question arises as to whether the design of the layout of a website is a separate work or just part of the coding. There is some case law (not UK case law) on the subject to suggest that it might be a separate work. According to R. V Re the Layout of a Website -(Case 4 Ob 94/01d), the layout of a website is itself a creative work. You should be ready to provide the actual design notes and design layout information. Access to the design notes by the defendant is also desirable but I don’t think it is essential. This is by no means a settled area of law, and there are many that say there is no copyright in the design of the layout of a website.
2. Another “live” issue is non-literal copying. It is very straightforward when you can show an excerpt of the code from a website and compare it with the code from the website of another business and there are substantial amounts of the code that are identical. Naturally, lawyers prefer a straightforward situation of literal reproduction that can be easily proven but what if the business copying you has copied your code but built their own code on the top of it? Not all cases will come in a perfect package. There may be cases where some work has to be done to prove copyright infringement and it might mean creating or helping to evolve the law.
S17(2) of the Act says that copying means reproduction in any material form. This goes beyond a straightforward literal copying and can include copying the structure. This type of non-literal copying focuses on whether there was copying of those elements of the original that were capable of copyright protection.
An adaptation of the website<
3. There is also the adaptation of website coding. An adaptation with reference to software, database and computer code is found in:
S21(3) (ab) as “an arrangement or altered version of the program or a translation of it”.
S21(3) (ac) as “in relation to a database, means an arrangement or altered version of the database or a translation of it”
S21(4) as “In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code”.
It is not clear why these should not apply to website code in website copyright infringement cases. Software is nothing more than coding stored in a fixed form that runs on hardware. Website coding runs on the Web and, in my opinion, there is no material difference.
There are other issues that need to be considered when bringing a website copyright infringement case. With exception of the ideas dichotomy they are relatively minor issues but still need to be considered.
First, you should be aware of the idea/expression dichotomy which overlaps with originality. Works in websites built on WordPress and Joomla will generally not be copyrightable.
Second, make sure you can provide samples of any works you say have been infringed, such as the website creative design file, design notes, code.
Third, you should know who the authors of the works are, the dates of creation and modification.
Fourth, authors should be EEA citizens or from a jurisdiction that the UK recognises as affording copyright protection.
Fifth, copyright is a property right. The people bringing the case must be the owners of the copyright in the website or be entitled by the owners to bring the case. If you are not the owner, then an assignment is necessary.
Finally, I would not advise bringing a website copyright infringement case unless your website cost more than £50,000.00 to design, develop and build. You should also have a minimum budget of £50,000 in costs. Cases do not always cost a minimum of £50,000.00, but bringing this type of litigation which are usually hotly contested, and involve expensive technical experts and reports are a serious business, and can cost much more.
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