Web Publishing
If you are going to publish a Web page (like this one), there are a lot of
items that you need to consider. One way to learn about good page design is to
cruise other people's well designed pages. You can use your browser's View |
Source command to peruse the HTML markup, locate the .gif files, identify
scripts, and generally get the inside view of how the page is designed and
constructed.
This is analogous to running your favorite computer application and being able
to call up the source code in a window to see how certain subroutines operate.
With such easy access to the inner workings and contents of other Web pages, it
seems only natural to borrow, paste, modify and otherwise use the resources of
the net to fashion your own presence.
Content
As far as expression of an idea goes, a Web page is not much different than a
magazine, book or multimedia CD-ROM. In that a Web page can contain text,
graphics, audio and video, the similarity to a CD-ROM is appropriate.
Generally, everything on a CD is copyrighted. If you look at a game like Myst ,
most people understand that the eerie music and distinctive graphics are
copyrighted. Similarly, if you look at a Multimedia encyclopedia CD, most
people understand that the graphics and narrative are protected by copyright.
However, if you were to post that same Multimedia encyclopedia CD as a Web
page, the copyright protections inherent in the individual elements of the work
would probably be less obvious to the casual browser. The reasons for this
discrepancy are both psychological and technological.
Design
Using the CD-ROM analogy, it is safe to say that a CD-ROM is protected as a
whole product. In the same way, a Web page may be protected as a whole product.
However, the technology of the net poses special problems. In a CD-ROM, the
design is a given. All users see basically the same thing, with possible
variations due to video adapters and displays. On the Web, different browsers
will display the same Web page differently. Additionally, people can modify
their browsers to alter or modify the way Web pages are displayed.
But what about the common net practice of grabbing HTML code from other good
looking Web pages as a source of inspiration and for use in one's own Web page?
This practice raises two separate issues:
-
Is saving HTML source code to your hard drive a
copyright violation?
-
Is reusing the HTML source code as a template for your Web page a copyright
violation?
This issue requires that we hack into the thicket of net technology to
understand where and when a copying occurs. When your Web browser (client)
accesses a Web page (server), the server sends the HTML information to your
client. The HTML information includes information regarding the location of the
other elements on the page, including graphics, audio files, video files and
links. Your client then uses that information that it now holds in RAM to
arrange the graphical display of the Web page on your terminal. Has any copying
occurred yet? This was an area of intense controversy when
the NII first proposed that this be considered the line as far as
determining copying for copyright purposes.
This is counter-intuitive, to put it mildly, and then most commentators would
not consider the act of accessing a Web page to also constitute an act of
copying the Web page. However, in the wake of the DMCA, such an access is
considered copying, and the way around the global mass infringement that
implies is the legal fiction that that there is an implied license to copy
webpages to RAM for the purposes of viewing them.
Now suppose you are viewing a well designed Web page that you particularly like and you decide to
save it to your local hard drive. You can either use your browser's Save
function to save the Web page as it looks (minus the graphics) or you can use
your browser's Source|Save function to save the HTML code to your local hard
drive. Are we copying yet? At this point, you have transferred the information
from dynamic RAM to a fixed space on your hard drive; you have effectively
copied the material.
Given that you have now copied material, the next question is whether you have
a valid fair use argument for doing so. Applying the Fair Use Test, it appears
that there may be some convincing arguments for a Fair Use defense in this
case.
Original Material
Although somewhat self-evident, it warrants mentioning that you can put
originally created text, graphics, audio and video on your Web page.
An example of original text is the text you are reading right now. I didn't
copy this from someone, I just made it up. Consequently, I can put it here for
you to read without fear of being sued by someone for copyright infringement.
What a nice feeling. Similarly, I created this graphic: 
I have posted this here completely secure in the knowledge that I am immune
from prosecution for copyright infringement for having done so.
Licensed Material
If you know of an item that you would like to use that was created by someone
else and whose copyright has not expired, then the most prudent course of
action is to license the right to use that item from the copyright owner.
For example, if I wanted to insert a graphic of Darth Vader on this Web page, I
would have to contact Lucasfilms and obtain a license to use the Darth Vadar
image. The license would spell out how I could use the image, how much I would
have to pay to use the image, and any other conditions and restrictions deemed
relevant.
Public Domain
The public domain conjures up an image of a strange sea full of old and
forgotten stuff. However, given the somewhat laborious task of tracking
down copyright owners and negotiating licenses for items that may only be
incidental to your Web page, using material from the public domain is often an
attractive alternative. However, you will want to be sure that you can
determine the status of the copyright, as it is not always readily apparent.
If you see an item on some else's Web page that is in the public domain, you
are free to download it and incorporate it into your Web page. However, given
the duration of copyrights compared with the age of the Web, you can be sure
that most items you will encounter on the Web will be under copyright. Also
note that if you find an item in the public domain that you wish to use, you
can only use that item and not the otherwise copyrightable elements of the page
from which it came. Additionally, be careful of compilations of public domain
items; while use of an individual element will be legal, the entire collection
of items may be protected under a compilation copyright.
Fair Use
It should be noted that this is an area of some confusion on the Web. While
this Web site makes use of Fair Use, the exception is fairly limited in
the context of a Web page. This is especially true in the context of
appropriating material from other Web pages for your Web page. As can be seen
in the Fair Use Test, one of the factors to be considered in determining
infringement is the effect in the marketplace for the original work.