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The Web and Copyright Licences

Every time somebody clicks to see a web page, and the web page appears on their screen, a copy of that web page is first down loaded from the net onto the viewer's computer. The material on the web, each and every page, image and sound, is protected by copyright law, and copyright law makes it unlawful to copy a work without the appropriate form of licence.

The founder of the web, the chap who thought up html and the first browser, has been known to say that he was fully aware that, in his terms, everything that would happen within the network created could be assumed to be happening in breach of copyrights. It was a deliberate decision on his part to ignore copyright law.

In practice he may have been too cautious. The law will imply a licence. Nevertheless, in English law, it is clear that the law will, if asked, look carefully at the terms proposed for this implied licence and case law suggests that the licence will be no wider than it needs to be in order to satisfy commercial necessity.

This was recently confirmed in a case involving the taking in preparation of photographs and artwork and the contractual relations between the graphic artist and the eventual customer. Decisions were reached, different licences implied, by the Judge into the various different factual situations.

Why is this important? There are many brave souls who suggest that anything which is published on the world wide web is fair game. If you "put it out there" you must assume that others will feel free to use it as they wish. This may be a sensible working assumption for any publisher on the web, it is not, however, a necessary assumption in law. The owner of the web site is entirely free to displace such implied licences by explicit ones in terms which the site owner feels are appropriate. In the vast majority of situations the site owners expectations will prove of little difficulty to visitors, and perhaps equally when they do cause difficulty, abuse of the licence by visitors may not be necessarily measured in terms of damages. As always however there are a very wide range of circumstances and there is no good reason to think that "one licence hits all".

In the absence of an express licence, the court would ask what terms are part of any implied licence. There is no case in England on this exact point, but my own view is that it would be wrong to assume as wide a licence as is sometimes though.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 289 18 October 2013