How can I protect digital content and at the same time exploit it on the internet?


Copyright and Database Rights


In most instances digital content will be protected by copyright and possibly database rights.  In law a database is not just a collection of data or information; it is a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.


In the UK you cannot register copyright or database rights.  They come into being automatically on the creation of the work. That means that they are cheap ways of protecting intellectual property; because there is no registry, there are no fees and no opposition procedure and you don't have to spend the tens of thousands of pounds that you might have to invest in protecting an invention by patent.  The downside is that you have no way of checking whether something is protected by copyright or database rights, you have to know the rules in order to decide whether or not a work is protected, and it's often difficult to know who owns what.


IP Notices


Some people are still convinced by the urban myth that anything published on the internet is in the public domain and may be used freely by anyone for any purpose, but that argument is simply countered by looking at a more traditional method of publication. A copy of a book may easily be obtained from a bookshop and it can be read by anyone who borrows a copy from a library, but that doesn't mean that we are all free to copy and re-use the material in the book.  A copyright work is in the public domain only once the period of copyright has expired.  Until that happens, it may be known to the public, but it is still protected by copyright.


In the UK it's not necessary to use the international copyright symbol - © followed by the name of the copyright owner and the year of publication.  Its use does, however, warn people that you are claiming copyright in the work, and it's useful if you ever need to take proceedings abroad. Therefore always use a copyright notice when you publish a copyright work, and alert people to the fact that your work is protected by IP rights.  It's increasingly common to embed an electronic watermark in digital material in addition to using the traditional copyright notice.


By bringing your rights to attention of visitors to your website, you can avoid the misuse of your material by the innocent but misguided.


Trademark Registration


Other forms of IP may be registered and you might, for instance, consider registering a distinctive name or logo, shape, colour or even sound as a trademark.  For details please refer to www.ipo.gov.uk.


Not all trademarks are registered; unregistered trademarks are protected under the law of passing off, although it is usually more difficult to show passing off than it is to show that there has been an infringement of your registered trademark.




Terms and Conditions


It's usual to protect digital content that is made available over the internet by imposing terms and conditions on the use of that content.  See the item below for some tips on licensing.


Is it worth imposing terms and conditions? Will people not  just disregard them?


It is worth having terms and conditions because:


a)                     there are many people who will obey the law as a matter of principle and who will honour your terms and conditions if: i) they are aware of them; ii) they understand them; and iii) the terms and conditions are fair/not unreasonable; and


b)                     terms and conditions allow you to reduce your risk by including limitations and exclusions on your liability.


Digital Rights Management


That said, it is obvious that there are many people who will not read the "small print", let alone abide by it.  As a result, distributors have adopted digital rights management (DRM) as a means of enforcing intellectual property rights by controlling access to and the copying of, and preventing the distribution of, digital material.


The WIPO Copyright Treaty (1996) requires countries to enact laws against DRM circumvention. This has been mirrored in the EU in the 2001 European Directive on Copyright. Under that Directive member states must implement legal protection for technological prevention measures. In the US the Digital Millennium Copyright Act 1998 criminalises the production and distribution of technology that allows people to circumvent technical copy-restriction methods.


Nevertheless determined hackers can and do circumvent DRM systems and in certain sectors consumers have an inherent dislike of anything that restricts their use of the material they think they have "bought", producing a market reaction against products that incorporate DRM. 


Some highly respected users, such as libraries, have serious concerns about DRM because it is used in ways that prevent the use of the work after copyright has expired and prevents fair dealing with the work. The use of DRM lacks the sophistication of copyright law and allows for no exclusions.  It is therefore more restrictive than copyright law.


Contact Details


If you would like further advice about any of the issues considered above please contact Christine Reid on 01865 864195 or email her at christine.reid@northwoodreid.com


Terms of Use


This article is not intended to be, and should not be taken as being, legal advice. The law often changes and it varies from jurisdiction to jurisdiction; the information in this article is generic in nature and specific legal advice should be taken before acting on any of it.


© Northwood Reid 2007. The use, copying and dissemination of this article are subject to our Terms of Use.