Copyright Issues when Building Web Pages

by JoAnne Benedict

A good web page includes text, graphics, sound, and even code (JavaScript). What are the rules that govern when a web page creator can copy any of the elements from another source? US copyright laws are clear that any original work in a tangible media is protected by copyright law even in the absence of a copyright notice.1 The copyright laws cover original work in digital form such as text, digital photographs, audio (WAV or other format), MIDI, artwork and even tile flooring, printed cloth and paper patterns.2 The only items that can legally be copied to a web page are items (background textures, clip art, photographs, sound files) that are sold as resources for the web page publisher. US copyright laws do recognize a "fair use" doctrine that allows copying under limited circumstances.

The U.S. Supreme Court decided over 100 years ago that photographs were covered by the copyright laws. In modern terms, this includes scanning photographs into digital form and copying photographs from one web site to your own.3 Even if the photograph is your own, but contains images of other people, you need a "model release" from that person for the use of the photograph. A more complex question arises whether you can include a IMG reference to photograph or clip art at another site. This is a gray area that has not yet been resolved in court, but is not a reliable way to include graphics as the original site may change their web page, making those images no longer available.4

According to the 1976 Copyright Act, the owner has the exclusive right to reproduce the work, prepare derivative works, distribute copies or phonorecords, and to perform or display the copyrighted work publicly. The owner can authorize others to do any of the above, but it is illegal for anyone else to violate any of these rights. Copyright happens automatically when a work is fixed in a tangible media for the first time and is protected for the author's life plus 50 years. The only limitation to the copyright law is the doctrine of "fair use".5

"Fair use" is primarily determined by three considerations: (1) the amount of the work that is copied, (2) the economic impact of the copying, and (3) the purpose for the copying (education or literary criticism).6 Section 107 of the 1976 Copyright Act defines several "fair uses" as the following: (1) criticism, (2) reporting, (3) teaching, (4) scholarship, and (5) research. Additional considerations are the length of the copied material, 10% or 1000 words (whichever is less), or articles, stores or essays less than 2500 words. The decision to make the copy must be spontaneous (no time to seek permission). A teacher is limited to one work per author, one class per semester, and a total of nine instances of such copying. The copying cannot be for use in an anthology or compilation. If there is a copyright notice, it must be included in the copies. The copying must not substitute for the purchase of classroom material and the students may not be charged for the actual cost of copying.7

The question now arises as to how these considerations enter into the process of creating web pages. It should be permissible to print someone's web page for the purpose of using it for research and including information or ideas into a research paper, but it would not be legal to copy the contents of a web page into your own web page. If you considered the information so important that you wanted to use it, you could include a link to the location where text is located. URLs are not copyrightable. They are like a telephone number or street address. However, you could be liable for libel if you include a derogatory comment about the web location.8

Copying background, clip art, and photographs follow the same principle as above. Unless the graphics are in public domain (i.e. part of a clip art collection sold for the purpose of allowing others to use them on their web pages or other documents), the copying of graphics elements would not be legal. This is especially true of logos, and images of created characters such as a picture of Micky Mouse.9
Copying MIDI or WAV files creates similar problems. You could create your own MIDI file from a classical piece whose copyright expired many year ago. A MIDI file found on an existing web site would be considered a performance by someone else and therefore is copyrighted. WAV files are also copyrighted and may even give rise to a trademark liability if they are considered to be a theme song for goods or services. If found guilty of copyright infringement, fines of from $500 to $20,000 as well as attorneys' fees could be imposed.10

One additional item that can be easily copied is JavaScript code that is imbedded into the web page. Many legal issues are yet to be resolved in this area, but since software is considered copyrightable, copying JavaScript code would be similar to copying the code in a program and would also be in violation of the copyright law.11

Several practical considerations result from a study of copyright issues as it relates to the classroom. If students and/or teachers are creating web pages (especially if it is part of a class), students must be aware of the problems and penalties resulting from copyright infringement. A high school class of advanced applications that concentrates on issues involving the creation of private or public web sites must also study and follow the guidelines of copyright issues and using elements in the web pages. One way to avoid problems is to have a large selection of commercial clip art, sound files, and photographs available for the students. A digital camera can be used to create original photographs for their web pages. A section on using a paint program or animation program will encourage original art.

When students are using the internet for research, they need to know the guidelines of "fair use" so they know what and how much material they can include in their reports. There is also a problem with students copying verbatim what they find on the internet. A study of copyright should also include a discussion of plagiarism and what the penalties are both in high school and in college. If a teacher thinks that students may have copied their reports, it is possible to use a search engine to find similar topics on the web.

The final consideration concerns "fair use" for teachers. Teachers have some latitude in copying material for their class, but they need to understand where the line is. These topics could be covered in an inservice on obtaining information from the internet.

Copyright law is not always straight forward and there are many gray area that even lawyers disagree on. In general, it would be best to err on the side of caution and be conservative in the use of material copied from the web.