How to Avoid Copyright Issues in Website Development

Developing a new website for a client always raises copyright issues.  It is in your best interest to ask the right questions and address them clearly in writing before starting to develop any website.

The Basics: What is Copyright and Who Owns What?

Copyright is a bundle of rights, chief among them being the right to produce or reproduce an original literary, dramatic, musical or artistic work.  In a website, these ‘works’ may include: written text, images, illustrations, photographs, charts, music, video, software code, computer programs, and databases.

Ownership of copyright to a work is separate from ownership of the physical work itself.  For example, you can own a painting or a book or a musical recording – ie, the physical thing – without owning the copyright, or the right to reproduce that work.  If you want to do something else with that work, you either need a licence (permission to use) or an assignment (transfer) in writing from the copyright owner.

So, who owns the copyright to the various bits of code and content which will make up the website?

Under the Copyright Act, the author of a work is presumed to be the first owner of the copyright unless there is an agreement to the contrary.

The exception is where the author of a work is an employee and the work is created in the course of employment, in which case the employer is presumed to be the first owner of the copyright, unless there is an agreement to the contrary.

Since it is not always easy to tell whether someone is an independent contractor or an employee, to avoid any uncertainty or unpleasant surprises, the best policy is to have a written agreement with your contributors as well as with your clients which spells out  who will own the copyright to what.

Questions You Should Answer Before Entering Into in a Contract with a Client:

1.    Will any of the code or content be created by an independent contractor?

• If so, do you have a written assignment (transfer) of copyright and waiver of moral rights from the contractor before he or she starts doing any work for you?

• Does it include representations and warranties that the work will be original and not infringe third party rights?

• If you cannot get an assignment of the copyright to a specific work and the owner will only provide a licence (permission to use), what is the scope of that licence and will you be able to sublicence them to your client?

2.    If any of the code or content will be created by an employee who  you hired for that purpose,  do you have a written employment agreement in place that confirms who owns the copyright to any work created?

• Does the written agreement contain representations and warranties that the contribution will be original and not infringe third party rights?

•  Does it include an indemnity and waiver of moral rights?

3.    Before any third party code or content (eg, open source software, stock images) is included in the website, have you acquired and documented all the necessary rights to copy and use that third party code or content ?

• Are you able to sublicence those rights to your client and, if so, on what terms and conditions?

• Are those terms and conditions going to be acceptable to your client?

4.    To the extent that you own the copyright to the code and content, should you assign or licence that copyright to the client?

• Is there any code or content that you may  want to reuse in other projects and, if so, is the client likely to accept a licence?

Clarifying these copyright issues in writing with your contributors, contractors, employees and clients ahead of time will save you from running into problems down the road when the website is launched.