ACID: Your website ~ do you check for IP liability?

IS IMITATION THE BEST FORM OF FLATTERY?   Usually not!

Do you check everything that you instruct your web designer to do on your behalf? Do you ensure that when you are briefing them that you do not ask them to inadvertently infringe someone else’s copyright?

In a recent case study an ACID member complained about another company (one of their competitors) after they had been alerted about some remarkable similarities in the text in a section headed “Technical Specifications”. The majority of the text was almost word for word copied from the ACID member’s website and there were paragraphs which had been slavishly copied. Putting together correct technical specifications, particularly in specialist areas, takes a tremendous amount of time, technical expertise and accuracy to ensure that those who buy the products are aware of all the finer detail and parameters in which they can use the product.

In many ways the devil is in the detail in many websites when maintaining professional standards. So, naturally, the ACID member was not only angry that the majority of this valuable information had been plagiarised but felt extremely disenchanted that someone in the same profession would take the fast track to supposed “respectability” by copying their hard earned information.

The ACID member telephoned the ACID IP hotline to clarify what her rights were and asked the question, “Well, if it is just technical specifications, have they infringed our copyright?” The answer is crystal clear, a resounding YES! The question has to be asked “Does the content have the quality of a literary work?” In this case, an IP lawyer who looked at the text, confirmed the legal position.

When ACID contacted the company in question they came back saying that they had instructed their web designer to include technical specifications and to look at competitors’ websites to check their technical details and compare with their own. Little did they know that the web designers had simply “lifted” most of the ACID member’s information, word for word. They did not believe they were legally liable because they had not instructed the web designers to do this.  Furthermore, they had not conducted a word by word check of the content of their new website before it went live. When it was pointed out that both the infringing web designers AND they would be liable, they were extremely apologetic and, naturally worried that this could be legally pursued. In this particular instance they were very lucky as the ACID member decided to not to pursue the copyright infringement legally and has accepted their apology. It was a salutary lesson and an extremely lucky escape for the other company concerned.

So what can be learned from this scenario?

1)    When briefing your web designer/s always ensure that you have an agreement which sets out the parameters within which you will work and make it quite clear that you respect the intellectual property rights of 3rd parties and you expect them to do likewise.
2)    Always ensure that you check website content before your website goes live
3)    Think about putting a clause in your agreement with your web designer which sets out clearly that you do not expect them to use images or wording where the intellectual property rights clearly belong to others. Always check that permission has been obtained or licences created for any images being used. Never “lift” images from a website without permission.
4)    It may also be useful to have a Freelance Designer Agreement with your web designer. When commissioning design work this is particularly relevant where designs are protected by copyright. This is because the position in copyright is that the author/creator of the work automatically owns the intellectual property rights in the work, not someone who has commissioned the work. However, there are also certain circumstances in which an agreement about who is to own the intellectual property rights can be implied.
5)    It is therefore ALWAYS advisable in a commission situation to obtain a written assignment of the intellectual property rights from the designer in order to ensure that there is no dispute about who was intended to own the intellectual property rights later on.

When would you use an ACID Freelance Designer Agreement?
When you ask someone to produce a design for you or design a website who is independent and not directly employed by you

Why?
To ensure you own all the rights but also to make sure that you include an indemnity clause against a designer whom you commission to do work on your behalf and to ensure that the work does not infringe the rights of a third party.

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