The Basics of Copyright on the Web

by Carrie Schuette

What is copyright protected on the web?

What is not protected on the web?

What about linking?

What if I don't want to be linked to?


As the Internet becomes more and more popular, more and more controversy and litigation will start to develop based on practices on the web. Up until now, people have relied upon the good faith of others to operate on the web with good conscience. However, just like every other human institution, the Internet is becoming a place where anything goes until serious rules of behavior are laid down and enforced. What I'd like to examine today is not the pirating of software, shrewd business deals on the web, or even privacy of personal account information. I'd like to discuss the implications of copyrighted material on the web and the ease with which this material can be accessed.

What exactly is copyright protected on the web?

To answer this question, we must first look at what is copyrighted in general media. The Copyright Act of 1976 says that "the items of expression can include literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic, sculptural works; audio-visual works; sound recordings, and architectural works." If this sounds a little confusing, there is an easier way to decide if something is copyrighted. Most items that are copyrighted have the copyright notice attached to them to let viewers know that the rights of the creator are protected should one decide to use the material illegally. Copyright is identified by the "C" within a circle, the year of copyright, the owner of the copyright and the phrase "All Rights Reserved". Other ways to identify copyrighted material is to check to see if the material is licensed to anyone. This means that if you want to use an image or text from something such as a movie or a book, it probably has a license by the publisher or the movie production company. These are fairly easy examples of what is protected under copyright, but the web technology sheds a whole new light on the situation.

To redefine the enormous definition in the previous paragraph is quite easy. Anything that is written down in a "tangible medium" is considered to be copyright protected through an implied license agreement for the author when he or she publishes. This is especially true for people who wish to publish on the web. The very nature of the web makes it easy for individuals to break copyright law. However, it has been argued that by publishing on the web you are knowingly engaging in this medium and, therefore, leaving yourself open for copyright infringements. In basic terms, anything you put on your web page and anything you see on someone else's web page can be considered in some way copyright protected even if it does not contain the actual copyright notice. This becomes a problem when people want to use things on the web for their own use. Is anything not protected then?

What is not copyright protected on the web?

When publishing your own page, you can be sure you are not breaking copyright if you only put down words and graphics that are of your own design. Also, there are a few things that can never be protected by copyright. These include ideas, facts, titles, names. short phrases and blank forms. However, if you would like to use "stuff" from other sites you have a couple of options you will want to consider before copying them. First, there is something called the "Public Domain" and anything labeled under this category is available for the public to copy at will. Items that have been copyrighted and have expired, lost their rights, government documents, and works specifically granted to the domain are all considered to be free for copying. Theoretically, you could fill your page with any material printed more than 75 years ago and be free of any copyright infringement what so ever; for the copyright has expired.

A second way to determine if material is copyright protected is to use the Fair Use Test. Under certain circumstances, it is permissible to use material for yourself without breaking copy law. One must consider the purpose and use of the material; Criticism, News Reporting, Research, and Education are all acceptable reasons to copy material. The nature of the work itself, the relative amount you copy and the effect copying may have on the commercial market for the material would also be issues a copyright lawyer would need to examine to determine if copyright law has been broken. So if the material to be copied isn't bringing change to the market, isn't an enormous amount, and seems to be more for educational purposes, then the material could be considered fair to use, but don't count on it.

On a happier note, linking to someone's page is not copyright protected. So technically anyone can link to anyone else's page without breaking copyright. However, because it does not break copy law itself, some people have tried to pass linked sites off as their own or give libelous information about the links to others. This does break the law and there are various ways to handle this situation.

So what do I do about linking?

Since linking is not infringing on anyone else's copyright, that would be the best way to "use" material you would like visitors to your page to have access to. There are a variety of different ways to link to other sites. Some offer you more protection from the law; others make it riskier for you. Hypertext links are the most basic and most familiar to web surfers. These are the links that are usually pieces of text colored differently from the rest of the text that will take you to another URL. Since only one site can be viewed at a time, this link is the safest link one can set up for their web page. Another way to link is through Inline links which are usually based upon images. These links put a user at risk of being copied because the images themselves have their own URL in the browser, which means the image is treated just like any other piece of text. Finally, one can engage in framing which allows the user to run many windows from many sites at once. Therefore, someone could visit a web site full of someone else's images, text, truly copyrighted material and it would look as though the material had always been there and was meant to be there. Obviously, there is great risk for someone who sets up this type of link, but is there anything we can do to keep this from happening to our pages?

Again, linking itself is not an infringement of copyright, but "Netiquette" does suggest that you ask the Webmaster permission before linking to the page. There is nothing that states you must ask permission because as stated earlier when one publishes on the web, they are engaging in a media whose very nature challenges copyright through implied access. A small problem does arise even if you do get permission from the Webmaster to link to their page. One must be absolutely sure that everything on the page one has linked to does not violate copy law. If it does, then you too could be brought up on infringement charges. As far as linking yourself to another page, it is suggested that you ask permission, but if you believe that there is nothing on the page that could be challenged as breaking copy law and the nature of the page implies access by anyone, then you can usually consider it safe to link to it even without permission. You could also give the Webmaster your URL and ask him or her to view your page to see in what context you are using them as a link.

What if someone doesn't want to be linked to? What can be done?

First of all, it has been said that if one refuses permission to link in the World Wide "Web", then they have missed the very purpose of the web. However, if someone does not wish to be linked to or copied for that matter, there are certain ways it can be avoided. Web site owners can use technological means to protect themselves from copyright infringement by using registration techniques, passwords, or even constantly changing the URLs of their sites. If one is more concerned with linking there is very little you can do to keep your site link-free. Unless the link makes you look bad or contains material you do not agree with, live with it. It is possible to set up access controls and passwords and registration,etc, but why go to the hassle? One defense against copying could be to place an option to link back to your home page on all of your links so that no one would mistake your page for someone else's. Use your own best judgment or don't publish on the web.

With the ease of copying becoming so apparent, things will need to change in the future or copyright will mean absolutely nothing. People have suggested charging visitors to sites, for printing the material and even linking. This concept is so preposterous that no one knows where to start the charging and how much to charge. One man has suggested that with these ideas and the prevalence of the web, he believes we will become more conscious of copyright law and act accordingly. So it seems more education is needed before this problem is solved.

Copyright law is one that can be very confusing, yet very simple at the same time. On one hand, everything that can be printed or read can be protected without license, but then why require licenses? People need to become more aware and more respectful of others' ideas and printed words. However, the Internet is a unique system itself and will require a whole new set of copyright laws and enforcers to cure the ailing ones. For now, the best advice is to 1) link to sites rather than copy material from them, 2) ask permission before you link to another site and 3) publish only your own thoughts and ideas on the web because as it stands those are still not infringements on copyright law.


"Copyright Fundamentals"

"Dangerous Liaisons:The Legal Risks of Linking Web Sites"

"The National Law Journal"

"Web Issues"

"Web Law FAQ"

Tom Kelliher