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Are you sure you own the rights in your website?

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The time is right. Your business has now grown to a size where you can afford to have a shiny new website, with things that zoom in and out and maybe even some digital content.

The first step to achieving your objective involves meeting with some prospective web developers in order to gain a better understanding of what is involved; you also decide to meet with your previous web developer.

What happens at those meetings surprises you. Firstly because you are told your current website doesn’t need a total re-write and secondly, at the meeting with your previous web developer you are informed that your business does not own any of the rights in it. Even worse you are not able to use any of the content without his permission. You are therefore faced with starting from scratch with one of the new developers you have met, or staying with your existing developer who you feel is holding you to ransom.

This is not an uncommon scenario. I have met with and advised business owners who had no idea that the effect of web development agreements they have entered into is that they cannot update, modify or adapt their own websites without the web developer’s permission.

Many web development contracts contain clauses which have the effect of reserving all of the intellectual property rights to the web developer. Such clauses allow the web developer to retain control (not necessarily a bad thing you might say) and may help to encourage loyalty at the point in time where work is needed on the site. Work on the site may be necessary to adapt, modify or update the site or in some cases to fix bugs in the site. Alternatively some web development contracts are silent on intellectual property ownership. As a matter of law this means that once the rights have been created they are the property of the creator (or author) of those rights.

In addition, often the sites are hosted by the web developer as part of the contractual terms for a defined period or on a rolling basis. Again such clauses assist the web developer to retain control. However, problems may arise where a business wishes to transfer the hosting arrangements to another third party further down the line.

What are intellectual property rights in websites anyway?

A number of different intellectual property rights may be available to protect the same website content. The layout, look and feel, design and content may be protected under the law of copyright, rights in databases, designs and trade marks. Further, the software that enables the site to function may be protected by copyright and/or patents, depending on the circumstances.

Copyright is likely to be the main intellectual property right available for protecting website content. Under UK law copyright comes into being without the need for registration. Whether the site is afforded copyright protection is not straightforward and professional advice should be sought. However, in summary the work must be original and have come into being by virtue of intellectual effort. It is also worthy of note that the various “works” which make up the content of a website and may be afforded copyright protection may not necessarily have the same author. By way of example, a business may write its own content for the website and the developer determines its functionality, look and feel.

What can I do to protect my business?

The key is to have a clearly defined web development contract which provides that the intellectual property rights created will be assigned (or in other words “transferred”) ideally on creation of those rights or alternatively once the web site has been paid for. Professional advice should be sought on the precise terms of agreement in order to ensure that the respective rights of the parties are clearly defined.

Finally can I copy work which is afforded copyright protection?

Good question. Find out my answer in my blog: It's OK to Copy isn't it?

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