Trade Mark News & Information

Trademark Lawyer Australia- Managing website content

How effectively do you manage content on your web site?

Your web site is the public face and front door to your business, but do you have procedures in place to check for compliance with copyright and trade mark issues?

Individual elements of a web site typically involve copyright material. Copyright may reside in most online content including articles, blog posts, tweets, photos, images, graphics, animations, videos, songs and music. Use of this content involves use of copyright material through uploading, downloading, hosting, copying, reusing, sharing, editing and other means. One or more web site elements may also function as a trade mark.

Copyright protection arises automatically once eligible material is created and put into a material form. There is no registration system. The person who created the material is generally the copyright owner (subject to some exceptions) and has the exclusive right to control use of that material by others. Copyright typically lasts for 70 years after the person who created the material dies, although there are some exceptions. Trade mark rights may arise through registration (which can be renewed every 10 years) and/or commercial use.

For example, an external web site designer will own the copyright in the web site’s source code and an external graphic designer will own copyright in any logo or graphic created for your business unless you have a written agreement transferring ownership of those rights.

You may be at risk of infringing another person’s copyright if you use a substantial part of copyright protected material without permission, for example by uploading someone else’s text, graphics or pictures to your web site, or streaming music or videos created by others from your web site. This may involve material you choose to integrate into your website and/or material contributed by users of your web site such as posts or reviews.

On the issue of reviews, copyright protected material may be used in certain ways without permission if it falls within a fair dealing exception. The Australian Competition and Consumer Commission (ACCC) has also published, on 3 December 2013, a guideline for use of online reviews by businesses at http://www.accc.gov.au/publications/online-reviews-a-guide-for-business-review-platforms to avoid misleading or deceptive conduct.

There may not be a copyright issue where your web site contains a link to legitimate non-infringing material on another website, but embedding this material into your web site should be avoided unless the source of the material specifically permits this.

Many businesses have a section on their web site setting out terms of permitted use of copyright material. If these terms do not cover the way you want to use the material, then express permission will be necessary.

Permission may not be required where third party material has been made available under a Creative Commons licence, but only where your use is within the terms and conditions of that licence.

It is safer to proceed on the assumption that permission will be required to make use of third party material on your web site. Professional advice should be sought regarding availability of the limited exceptions under the Copyright Act.

A useful starting point for seeking permission is to contact a relevant collecting society such as APRA/AMCOS for music, PPCA for sound recordings and Copyright Agency/Viscopy for paintings and drawings. Otherwise, you will need to obtain permission directly from the copyright owner.

The permission or licence you obtain will need to clearly identify the relevant material as well as how and where it can be used and how long the permission will last. An exclusive license will typically be more expensive than a non-exclusive licence because the copyright owner will not be able to generate revenue through licensing that material to others.

You are in a position to have greater control over the use of content contributed by users of your web site. Such user generated content includes a broad range of material posted or shared online. Control can be achieved by obtaining permission as part of the terms of uploading content to your web site to which users must agree before being able to access your web site or post to it. These terms should cover the ways you want to use the material as well as the ways you want your other users to be free to use it.

Problems may arise where your users post material that may contain copyright content owned by another party and may not be in a position to give your business the relevant permission to use that other content.

It is essential that you carefully manage and regulate users of your website, so that expectations and policies are clearly communicated.

Here are some useful tips to manage the risks and potential liability for copyright and/or trade mark infringement arising from the online presence of your business:

  • Have a designated person with responsibility for dealing with copyright and trade marks;
  • Review your website to audit content from a copyright and trade mark perspective;
  • Keep a register of copyright content created by employees of your business;
  • Keep a register of commissioned copyright content created by external parties for use by your business, including any written agreements transferring ownership;
  • Keep a register of trade marks used and/or registered by your business;
  • Keep a register of permissions/licences;
  • Monitor content posted by users to your web site; and
  • Review your online terms and conditions for legal compliance and to keep up to date with technological changes.

Material posted online has its own footprint and my still be traced even once it is deleted from your web site. However, regular reviews and promptly deleting potentially risky content can minimise risk. Disclaimers are likely to be ineffectual and it is too late to do anything once something goes viral and takes on a life of its own.

Your website reflects the image you want to present to new and existing customers, so the time and effort in closely regulating and monitoring content on this important marketing tool is a wise investment.