Protecting the Intellectual Property in your Website

We all have ideas and some of these ideas are worth protecting - however, under the law only the expression of these ideas and not the idea themselves can be protected.

 This article is just a brief look at the number of ways you can protect such valuable intellectual property and it also contains some tips on how you might avoid infringing the intellectual property rights of third party owners:

 1)         Copyright

 In Ireland, copyright vests automatically in a work so long as it meets certain criteria which are as follows:

 - it must be “original”;

- it must be recorded in writing or otherwise.

 Therefore, when creating your website, you need to consider whether you are the owner of or have the right to use all of the  materials that you wish to include in the website, e.g. text, links, frames, photographs and software. If you are not the owner of the materials, you will need a licence from the copyright owner in order to use or amend them and include them in your website.

 It is crucial to bear in mind that it is the expression of the idea that is protected and not the idea itself e.g. there is nothing stopping you creating a website that deals in auction sales but if you copy the look and feel of the ebay site (or “scrape” it) then you are at risk of infringing their copyright in the expression of the idea itself - please see the case of Rynair v Bravofly for further details of this case and the surrounding facts:

 http://www.irishtimes.com/newspaper/finance/2008/0708/1215380380955.html

 As can also be seen from the above case there was also an issue with hypertext links.

 A hypertext link joins one website to another website. It is possible that anyone whose website includes links could be held responsible for any page to which it is linked, even if this link is indirect and involves passing through unconnected parties. Ideally, you should ensure that, if you wish to include a link to another website, you have permission from the owner of the website to do so. A linking agreement could be used for this purpose. If this is not possible or it is not practicable, then other steps may be taken to minise the threat of litigation such as only linking to the third party’s home page (some sites take great exception to their home page being bypassed by way of a deep link).

 ”Framing” is another way to infringe a third party’s copyright. Framing allows a website to be displayed in a smaller window on another website. Again, the easiest way to avoid trouble would be to seek permission from the owner of the other site - if they raise objections at that point then more then likely they would raise objections if they came across it later - this could prove unecessary and expensive.

  Another step would be to avoid copying a third party’s brand/logo onto your website without their premission as otherwise you could be infringing their trademark. We think that a degree of tact and sensibility can go a long way e.g. in your own reasonable opinion are you incurring a loss of reputation or a loss of revenue from the third party site? If you think that you are then more then likley the third party will also think the same!

 It would be sensible therefore to have included within your own site’s terms and conditions a restriction on such third party linking if appropriate in your case. In this way, if the occasion arises you can simply point to the relevant terms in your Cease and Desist letter and that should be enough to scare them off.

Finally, where we see infringment also occur is in the area of software infringement - even if a third party’s softare is free e.g. on shareware sites, this does not mean that you can simply download it and then either re-share it, or, worse, sell it! This software is protected by copyright law and will in all liklihood be protected by a licence seen on the original website.

 Again, if it is you that is providing the software for download you should ensure that you have a properly drafted licence in place which is backed up by your terms and conditions for use of the site and which are designed to properly incorporate those terms and conditions into the agreement with the user.

 2)         Employees and sub-contractors

 If your employees are creating your website then, in the absence of any contractual term to the contrary, copyright automatically vests in you as the employer.

 This is not the case however if you are commissioning third party contractors (e.g. website developers) to create your website. This is a very common misunderstanding. In the absence of a contractual term/agreement to the contrary the  contractor will own the copyright in whatever it creates. Therefore, you should agree in advance (by way of an independent contractor agreement/website development agreement) that the copyright in anything created by the contractor for you will be fully owned by you.

 In summary, intellectual property is becoming an increasingly valuable commercial asset and it deserves to be protected from infringement from employees and third parties - we can assist you in this.

 Please contact David on dreilly@dreilly.ie for further information on this topic or any other legal problem or matter.