In the digital age, everything from photographs to recipes can be found online, and people regularly download, use, and share web content. Web-based publications, such as blogs and articles often have certain intellectual property (IP) protections under federal law. See, e.g., Dr. Jean Murray, “How to Copyright a Website to Protect It,” The Balance Small Business, May 19, 2018, at https://www.thebalancesmb.com/copyright-a-website-to-protect-it-4145788 (last visited Jun. 27, 2018). Websites and their content tend to have copyright protection, though exceptions exist. See, e.g., id. This article examines when web-based articles, blogs, and related works have the safeguards provided by copyright laws, instances when typical protections do not apply, and how experts play an important part in resolving these questions.
As one IP commentator asserts, “Under the DMCA or Digital Millennium Copyright Act, all content published online is protected under copyright law, regardless of it having the copyright symbol on the page. Any content, no matter the form it takes (whether digital, print, or media) is protected under copyright law.” Oleksiy Synelnychenko, “How to Protect the Copyright of My Web Content,” IP Watchdog, Jun. 5, 2013, at http://www.ipwatchdog.com/2013/06/05/how-to-protect-the-copyright-of-my-web-content/id=40655/ (last visited Jun. 27, 2018); See also Dr. Jean Murray, supra. This definition of the DMCA is very broad, and those who publish blogs, articles, or similar material on their websites are covered by the protections of copyright law, according to a number of business and IP analysts. See id (citing the U.S. Copyright Office); See also Oleksiy Synelchenko, supra. Those wishing to use written material found on a third-party’s website are often admonished to assume that a work is protected by a copyright. See, e.g., Stanford University Libraries, “Websites: Five Ways to Stay Out of Trouble,” Apr. 14, 2017, at https://fairuse.stanford.edu/overview/website-permissions/websites/ (last visited Jun. 27, 2018).
However, determining whether web-based publications are safeguarded by the DMCA or other laws is not always answered with a simple yes or no, and other considerations may alter the status of a particular claim. For example, federal law carves out some exceptions so that certain materials can be used, shared, and even reproduced. See, e.g., 17 U.S.C. § 107, “Limitations on exclusive rights: Fair use.”
One of the major exceptions to the generally-presumed copyright protections of websites and their content is codified in the “fair use” doctrine. The Copyright Act provides that “[f]air use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” U.S. Copyright Office, “More Information on Fair Use,” Mar. 2018, at https://www.copyright.gov/fair-use/more-info.html (last visited Jun. 27, 2018). To determine whether a third-party can invoke fair use as a defense to avoid otherwise infringing on a copyright, the purpose and type of use are assessed, using the statutory framework of the Copyright Act. See id. Section 107 of the Act offers a four-part test to determine if an activity qualifies as fair use and is, therefore, an exception to copyright infringement. See id.
The fair use test evaluates: (1). The “[p]urpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes,” (2). The “[n]ature of the copyrighted work,” (3). The “[a]mount and substantiality of the portion used in relation to the copyrighted work as a whole,” and (4). The “[e]ffect of the use upon the potential market for or value of the copyrighted work.” Id.
To address whether web content is exempt from copyright protection under the fair use doctrine, attorneys and courts often require expert witnesses’ guidance. Consultants and testifying experts who specialize in intellectual property, particularly copyrights and web-based content, may be critical to help persuade adjudicators of the merits of a party’s claims.
In addition to being aware of potential exceptions to copyright safeguards, those with original web-based publications should consider proactively protecting their material. One copyright analyst explains that authors and publishers of web content can follow certain guidelines to ensure their work is covered by the law. See Oleksiy Synelnychenko, supra. For example, preventive steps can be followed to deter copyright infringement, which may include registering a website and/or its content with the DMCA, placing copyright notices on a website, and documenting the creative process of writing and publishing web-based material. See id. Expert witnesses can act as consultants and help owners/publishers of web content to attain adequate protection against copyright infringement. Content monitoring tools also exist to ensure that web publications are not duplicated without the author or publisher’s permission, and experts can assist in using and managing such technologies. See, e.g., id.
In the event that articles, blogs, and similar materials are plagiarized or otherwise used in an unauthorized manner, the DMCA provides legal redress. See id. Experts can assist attorneys in deciding the best course of action to take to pursue damages when unlawful use occurs, and successful litigation may deter future would-be violators.
Digital publications have quickly become a norm, and owners of such content should be aware of the legal issues that pertain to the IP status of the work they own and/or publish. Regardless of which side an attorney represents, expert witnesses may prove invaluable in assessing whether a web-based publication is protected or not. The DMCA is re-evaluated every three years, and 2018’s proposed new rules encountered substantial pushback. See, e.g., Cory Doctorow, “Did Congress Really Expect Us To Whittle Our Own Personal Jailbreaking Tools?,” Electronic Frontier Foundation, Feb. 20, 2018. Regardless of whether attorneys represent third-party users or originators of web content, careful attention should be paid to emerging rules and case law.