Business tips

Intellectual property series, part 3: Online content copyright

SMB owners should get written, legal agreements in place with developers relating to the ownership of copyright in their website. Here are nine key points a Website Development Agreement should cover, as well as other good legal tips for using photographers and writers.

Investing in original content for your website not only helps you engage with your customers, it can also increase your rankings in search engine results. But if you’ve engaged a web developer to create your custom website, do you own the copyright of the site? And what about the blog content that you’ve commissioned a writer to produce, or the images you’ve paid a photographer to supply – does the copyright rest with you or the creators?

Put it in writing

The best way to eliminate uncertainty around the copyright of your website and its content is to develop written agreements with your suppliers.

Jennifer Tutty, Director of Melbourne-based law firm Studio Legal, recommends putting in place a Website Development Agreement, which sets out the key terms and conditions for the design and development of your website.

Tutty says a Website Development Agreement would typically cover these key nine areas:
1. Fees
2. Development stages and delivery dates
3. Agreed scope of work and creative brief
4. Payment terms
5. Ownership and assignment of intellectual property (including copyright)
6. Approval process for development stages and final sign-off
7. Developer’s warranties as to quality and suitability of website
8. Confidentiality of SMB owner’s information
9. Cancellation rights for SMB owners

Tutty says this agreement must clearly state that the developer assigns ownership of the copyright in the website and its content to the SMB owner at a certain stage of the development process (usually upon completion of website and full payment of the developer’s) fees. “It is important to note that by law, assignment of copyright needs to be in writing and signed by, or on behalf of, the assignor,” she says. “A verbal agreement will not suffice and should not be relied upon.”

Copyright for words and pictures

Written agreements should also be set up with suppliers of content, such as photographers or illustrators.

While it’s a general principle that the author of a literary, dramatic, art or musical work owns the copyright of that work, there are two exceptions. The first is if a content creator has signed a contract to assign copyright. The second is if the work was created in the course of their employment, in which case the employer owns copyright.

Tutty says the best way to avoid potential confusion is, again, get an agreement in writing. “It is best practice to have written release agreements with all the contributors involved in the project or development to ensure that they clearly assign over to the SMB owner all copyright they may have acquired in the website and content during the development process.

If you engage a writer to create content for your website, such as copy writing or writing a blog, it’s recommended that they provide written warranties that outline that the content meets these four points:
1. It is new and original.
2. It will not infringe the rights of any third party (for example, that the writer is not tied down to another exclusive services contract).
3. It will not defame any third party.
4. It will not be misleading and deceptive.

“We would also recommend that the writer indemnifies the SMB owner in respect of any loss or damage the SMB owner may suffer as a result of the writer breaching any warranties he or she gives in respect of the blog or content,” says Tutty.

Copyright and Intellectual Property Rights of pre-built e-commerce platforms

If you decide to use a pre-built e-commerce platform, such as Shopify or Australia Post’s My Online Shop, to power your online store, ownership of the words and images you submit will usually belong to you (but always double check the terms and conditions of such platforms). However, the coding, development and design of the website platform will usually remain the property of the business that created it. “This will include their computer coding, logo, specific designs or themes, fonts or images,” points out Tutty.

In order to best protect the copyright and other intellectual property rights associated with your website, you should include a page outlining the terms and conditions of use of your website. “Terms and conditions should be drafted specifically for your website and not ripped off from someone else’s website,” says Tutty. She adds that all website terms and conditions should include provisions on the ownership and use of copyright and intellectual property.

Provisions could include that you are the exclusive owner of all intellectual property rights associated with content on your website. They could also state that users may browse or print the content for non-commercial use, but that they must obtain your prior written permission if they would like to use, copy or reproduce any part of your website for another purpose.

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