A Web project probably involves more rights than any other type of project, given the many different media objects usually used. For example, in a typical Web project, such as one for a basic fan club website, rights may exist in the textual content, graphics used in the design of the pages,
photographs, sounds, music, and video clips of the star, all of which usually require licenses before they could be used, if created by other people. Because there are moral rights in some works, the licenses also need to cover the way the works will be used, if they are going be used in an unusual way (such as combining them with contentious works or messages), or edited in ways that will mutilate them or alter their meaning. Of course, rights are also typically produced in a project, if works are created by the people in it, and the matter of who owns which rights need to be clarified, usually via the terms of employees’ contracts. The following are some possible types of rights.
1. Rights in Text
Text is the most used media in Web design. While intellectual property rarely exists in its design, there is one in the literary work it is used to compose and this is protected. Consequently, if anyone’s literary work is used word for word (e.g., copied and pasted), or translated into another language without permission, this may constitute both copyright and moral right infringement. In cases where free use exception is exercised, the amount used is limited and the text is enclosed in quotation marks as well as attributed to the author, thus:
Copying and pasting an author’s work without enclosing it in quotation marks and attributing it to the author is an infringement of copyright (James, 2000).
If a work is not copied word for word, but paraphrased, then, although no infringement has occurred, an offence called plagiarism may be committed if the amount paraphrased is large and there is no attribution to the author. It is also worth remembering that even if 70 years have passed since the death of the author of a literary work, this does not mean that the work is out of copyright. For example, there may be a translator of the work who is still alive and owns some rights.
2. Rights in Images and Photographs
Whether images are created with cameras or graphics programs, or started life in digital or analogue form, clearance is needed if they were created by other people. Even the scanning of images created by other people without permission may be an act of infringement. Although clients may have existing images or photographs, this does not mean they own the rights. If they do not, then permission must be sought from the creators to use the works in whichever ways are intended. Of course, where a company logo is created in a project, it must not be too similar to any existing logo design, as this is protected under copyright as artwork.
For some types of projects, such as personal, nonprofit website production, or sample use, including mock-ups, the use of free stock images is usually sufficient. However, although there is no need to ask for a license, it is important that the stipulated terms and conditions of use are complied with, otherwise this would constitute infringement. With some of these sources, all that is required is attribution, while with others, users are required to include a link back to the respective sites. This ensures that the websites are credited for the use of the graphics. Graphics from free- stock websites may also be used for commercial projects, in which case, a license usually needs to be purchased.
3. Rights in Music and Speech
There are many different rights in audio works and determining the correct licenses to obtain, and from where to obtain them, can be confusing, particularly as different types of uses require different types of licenses from different sources. For example, for a recorded tune, some rights are owned by the composer, some by the publisher, some by the producer of the recording of the tune, and some by the performer of the tune, if the recording is of a live performance of the tune. To complicate matters, some rights are regularly transferred between parties to maximize the exploitation of a tune. Essentially, on completion of a tune, composers usually license their copyright (but not moral rights) in a work to a publisher to exploit the tune on their behalf. The publisher then usually licenses the tune to a record company and/or broadcaster, which then records and/or broadcasts it, respectively. This means, in this case, that in order to legally use the tune in a Web application, for example, as background music, a license needs to be obtained from the composer or the publisher, whereas to legally make copies or sell the recording of the tune, it is usually the record company that has the right to give the permission.
The most common ways music is used in a Web project are as background music (for example, to enhance user experience) and in combination with visual content to communicate a message. These types of uses are different from when, for example, a website provides music download services (e.g., iTunes) or streaming services (e.g., Internet radios), in which case, a developer is unlikely to be involved in any licensing matters, as this is a business matter and does not involve the use of music in a project.
Where a tune will be used or synchronized with visual content, such as is done in motion picture, video, and commercial, a synchronization license is required from the composer or the publisher, which allows the rerecording of the tune and its use with a visual. If the tune is going to be performed live for the re-recording, then a performance license may also be required from the composer or the publisher. On the other hand, if an existing recording of the tune by a specific artist will be used, then, as well as a synchronization license, a master recording license is usually required from the owner of the master. If the existing recording is of a live performance, then a license may also be required from the performer, who usually owns the performers’ rights. Where an audio recording is of spoken words only, permission is required each from the person who owns the rights in the speech, the recording, and the performing of the speech. If a live performance, whether of music or speech, is going to be recorded for use in an application, then permission is usually required from the performer, both to record and use the recording.
To make the acquisition of licenses more straightforward than chasing after rights owners, there are various licensing agencies (also called copyright collectives), from whom licenses can be obtained. These organizations perform the collective management of copyright and related rights for their members, who may be composers, performers, or publishers. They grant licenses, including compulsory licenses, to users and collect royalties on behalf of their members. Such organizations in the UK include PRS for Music, which deals with performance licenses, and the Mechanical Copyright Protection Society (MCPS), which issues copying licenses for a recording. In the US, they include the American Society of Computers, Authors and Publishers (ASCAP) and Harry Fox Agency, respectively. With most of them, only an on-line form needs to be filled to obtain most licenses.
4. Rights in Video and Animation
Like with audio, there can be multiple rights in video, depending on the type of video. For example, for a video of someone, there are rights in the performance and in the recording. This means that the permissions of both the performer and the person who did the recording are needed to use the video. If there is also an accompanying music in the video, then there are the usual rights in the music, as already described. For a video of objects, rights exist only in the recording, but permission might be needed to shoot the objects if they are other people’s personal properties. If there is accompanying music or commentary, then, again, there are rights in the music, and the commentary is protected as literary work. With animation, there are rights in the whole animation piece as well as in any accompanying music or commentary.
The rights in both an animation and a video piece also apply to the individual images, since they are both essentially moving images or a series of images displayed at a certain speed. So, even if just a single image is used from a video or an animation clip, there may be copyright infringement, if done without permission. Of course, obtaining licenses to use a video is seldom as complicated as obtaining licenses in music, because the subjects in a video would often be required to sign a release contract that gives the videographer the right to use the video as deemed fit; so, videographers often have the right to give the permission to use the videos they have produced.
5. Rights in Codes and Database
The copyright in the source codes created in a project normally belongs to the developer, and it is also usually retained. This ensures that he/she can re-use the codes in other projects. Of course, he/she also needs to give the clients the permission to use the codes as well as access to them and other types of outputs from the project. This is so that, if desired, the clients can use other developers to make required modifications, instead of the original developer. These arrangements would have been made clear in the terms of the contract. Furthermore, in large projects where a system can last for very long time, in order to protect the interest of the clients, copies of codes are deposited with a third party, such as a bank, who can allow access to them in the event that the original developer has ceased trading.
If the application developed in a project is a media-rich Web application, the chances are that a database will be used to store the media files and scripts (codes) used for their selection, arrangement, and display. Any content that is protected by any rights will still be protected, even when stored in a database, and therefore, requires license before use. Permission is needed, too, before the content of other people’s database or codes can be copied, adapted, or used.
Where original works have been produced in a project, including codes, database, and application design, it is important to contemplate how an infringement could be proven, and archive evidence accordingly. For example, as mentioned before, unique marks (e.g., deliberate mistakes in comments) may be placed in codes or somewhere in the database structure.
Source: Sklar David (2016), HTML: A Gentle Introduction to the Web’s Most Popular Language, O’Reilly Media; 1st edition.