Your Freedom to Use Web Content

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The time businesses spend accessing the Internet for information continues to increase. Oftentimes, businesses use the Internet to avoid having to reinvent the wheel. The wheel may be in the form of textual documents, images, or music. But to what extent does the Copyright Act limit one's ability to "use" Web content?

Copyright Act
The Copyright Act protects original works of authorship that broadly include items such as literature, music, graphics, motion pictures, and sound recordings. However, specifically excluded from protection is an "idea" or "concept" that can form the basis of an original work of authorship.

Authors' rights are further circumscribed. First, the exclusive rights are largely limited to acts occurring "publicly." Second, the exclusive rights are limited to enumerated acts, such as "to distribute," "to perform," and "to display" a work.

Possible Uses of Web Content
The types of Web material employees and individuals browse for potential "use" widely varies. And the manner in which the "use" can occur can be equally varied. But it is the specific "use" of web content that determines one's ability to freely "use" it since not all uses constitute copyright infringement.

Generally, copyright infringement can occur only where there is "copying." Thus, no infringement can exist if the subsequent work is independently created - no matter the similarity between the copyrighted work and the subsequent work.

  • Using an Article's Subject of Discussion - A possible scenario is an employee searching the Web to obtain topical ideas for a paper the employee must write for his work group. Here, copyright law distinguishes between an idea (which is not protectible) and the expression of an idea (which is protectible). Accordingly, if the employee only gets topic ideas from articles on the Web, but does not use textual material that express or describe the ideas, no infringement would seem to exist.
  • Copying an Article's Topic Headings - An employee may find that the topic headings of an article are general enough to be used in preparing the employee's own paper. An applicable maxim is that more than de minimus copying is required for infringement and that there must be substantial similarity between the works to establish infringement. Thus, copying of only the topic headings - especially if they could be described as generic - might not be enough to establish infringement.
  • Using an Article for a Customer - An employee may download and then photocopy an article to give it to a customer to assist in a sales transaction. This could be an infringing public distribution or display. Such could be true even though the copyrighted work was in an electronic medium and what the employee gave the customer was in a different medium, i.e., paper.
  • Linking to an Article on Another's Web Site - Perhaps an employee finds it more efficient to link an article from another's web site to the company's web site. In this instance, the framing of a full-sized image of the copyrighted article could constitute an infringing public display.
  • Linking to a Database on Another's Web Site - Rather than linking to an article, an employee may want to link to a database on another's web site. This presents an issue of whether the database is a copyrightable work.

Conclusion
The Internet is often viewed as a "free" source of information. It certainly can be - when viewed from whether immediate payment is required to use the content. But the payment may come at a future time when faced with a claim of copyright infringement. Clearing uses of Web content by counsel can certainly lessen the potential for monetary payments down the road.

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