eBlue, Sacra Blue Online Magazine
     Number 201 - April 1999
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Steve Davis
Legal Bits
By Steve Davis



Stephen L. Davis is an SPCUG member and attorney practicing in Sacramento in the areas of intellectual property law, business law, and civil trials and appeals. You can send him e-mail at sdavis@cwia.com.
Protect Your Web Site by Copyright Registration

Your business's Web site can be a valuable asset. It can also be copied, imitated, or misused by your competitors. If your business has a Web site, and if you want to protect it from infringement by others, you should think about registering the Web site with the United States Copyright Office.
    A Web site, like a book, a picture, or a song is a creative work that may be entitled to protection under copyright laws. A typical Web site may have many parts that are entitled to copyright protection: graphics, text, sounds, moving pictures, and music. The computer code used to create the Web site may also be eligible for copyright protection.
    With so many different elements, a Web site may present a bit of a challenge for copyright registration. Fortunately, the Copyright Office recently issued an informational pamphlet, Circular 66, on how to register online works. Although it doesn't answer every question about registering a Web site, it offers a good start.

Is Copyright Registration Necessary?
The first issue the Web site owner must confront is whether registration is even necessary. Strictly speaking, under federal copyright law the author of a Web site owns the copyright in the site as soon as he or she creates it (even before it is put online or registered with the Copyright Office). The copyright owner has the exclusive right to make copies of the work, and may sue anyone who infringes on the copyright by making unauthorized copies.
    For example, suppose a small business owner (we'll call her Mary) develops a Web site that advertises her business. The site contains text, some pictures and graphics, sounds, and music. Mary has authored all of these elements for the Web site herself.
    As the author of the Web site, Mary owns the copyright in the site as soon as she creates it--even before she puts it online or registers a copyright in it. As the author and owner, she has the right to sue anyone who infringes her copyright by wrongfully copying or publishing material from her Web site. At the same time, if she does not first register her copyright with the Copyright Office, her right to recover damages against the infringer is very limited. So it may be prudent for her to obtain registration of her copyright in the Web site.
    Whether or not Mary decides to register the Web site, she should post a copyright notice on the site for all visitors to see. A typical copyright notice would include the word "Copyright" or the © symbol, followed by the date and her name as the copyright owner. The words "All Rights Reserved" or something similar could be added immediately following her name.

Choosing a Form
Once the Web site owner decides to register the site with the Copyright Office, she has to decide which form to use. A variety of forms are available. For example, Form TX is for nondramatic literary works, such as books and compilations of information. Form VA is for visual art works, including pictorial, graphic, and sculptural works. Form SR is for sound recordings.
    When a work combines different elements, as a Web site usually does, then the choice of form depends on which elements predominate in the work. For example, if a business's Web site consists largely of text that describes the business

and provides information about placing orders for the business's products, then Form TX probably should be chosen.
    The choice of form is a little trickier if the Web site is frequently updated. For example, suppose Mary's Web site contains articles she authors about her industry. She regularly updates the articles and also attaches photographs she has taken to the articles.
    If Mary has registered her Web site only one time as a single work, she may not adequately have registered her copyright in the new articles and photographs she later adds to the Web site.
    As an alternative, Mary may be able to obtain "group" registration of her Web site as a "serial" or as a "newsletter" if her Web site meets certain qualifications. The Copyright Office has issued additional information pamphlets, Circulars 62, 62b, and 62c, which help explain when group registration of a site may be available.

Deposit of Work
After deciding which form to submit with the copyright registration, the Web site owner must decide the format in which to present the work itself. In the case of a Web site, this choice is far from obvious, because a Web site can be presented in a variety of formats--on a computer disk, as source code, as one or more printed pages, or on an audio or videocassette.
    Again, Circular 66 offers some guidance. The Web site owner has two options.
    Under option one, the Web site owner must submit a computer disk that contains the entire work, plus representative portions of the Web site in a format that can be examined by the Office. If the Web site is short (five pages or less of text or artwork, or three minutes or less of music, sounds, or audiovisual material), the entire work must be deposited in a representative form. If it is longer, only five representative pages or three representative minutes of the work, whichever makes more sense, must be submitted.
    The second option is to present the entire work in a representative form, regardless of its length, without a computer disk.
    For example, if Mary's Web site is fairly short, say five pages, then she may opt to submit only clear, color printouts of her Web site's pages. That may be adequate as long as she does not seek copyright protection for any musical or moving graphic elements on her Web site (she may not, for example, if the music on the site does not belong to her but is in the public domain).
    Mary may want to submit the site on a computer disk if it is long and complicated, or if it contains computer software that she wants to register as well. She should be careful about submitting a copy of any proprietary or secret computer software, however, because it will become a public record when it is registered. The Copyright Office has issued another pamphlet, Circular 61, that addresses trade secrecy concerns when seeking registration of computer programs.
    Web site owners with questions about copyright registration can download forms and information circulars from the Copyright Office's Web site at lcweb.loc.gov/copyright. These forms and circulars can answer many of the questions a Web site owner may have. In any event, the Web site owner should always consider consulting an attorney prior to seeking registration of his site.

Number 201 - April 1999