There is no copyright in a website as such, but copyright will usually protect some or all of the elements of a website. Copyright protects specific classes of “work”. Those classes are enumerated in the Copyright, Designs and Patents Act 1988.
Section 1(1) provides:
Copyright is a property right which subsists in accordance with this Part in the following descriptions of work — (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films or broadcasts, and (c) the typographical arrangement of published editions.
These classes of copyright work largely pre-date the internet, but have proven adaptable to new technologies. In this post, I look at the different elements comprising a typical website, and consider the ways in which they are protected – or left unprotected – by English copyright law.
Website text will usually be protected as a literary work or as a collection of literary works. This protection is available to text – and other kinds of recorded symbolic code – irrespective of literary merit. However, text will need to be “original”: it will need to be the product of the author’s effort, labour and skill, and must not be copied from elsewhere.
Hypertext mark-up language (HTML) will incorporate the website text, but add with added mark-up: tags indicating meta-information, headings, paragraphs, image sources and positions, text characteristics, page divisions and so on.
In one sense, then, the HTML of a website is a derivative work of the text of a website. Much HTML is standard, and any given page of HTML may not have the requisite originality to be protected separately from the protection afforded to the text itself. If it does have the requisite originality, it will be protected as a literary work.
Cascading style sheets (CSS) are largely responsible for the specification of the appearance of a web page. CSS directives are applied to mark-up by web browsers in the process of rendering a web page. They influence or determine such matters as the positioning and spacing of elements on the page, the colour of page elements and font type, size and style.
On the face of it, CSS files should be protected by literary copyright. However, as with HTML, there will be cases where the originality hurdle has not been surmounted. In other cases, however, where the originality of the CSS can be demonstrated, protection should be available.
Because of the limited vocabulary and simple syntax of both HTML and CSS, it may be difficult to prove copying where there are any material differences between the “original” and the “copy”.
Almost all modern websites incorporate software of one kind or another, from simply form submission scripts to complex content management and ecommerce systems. Software code proper, whether in an interpreted or compiled language, allows for a greater range of expression than of HTML and CSS – notwithstanding the wide use of established algorithms and design patterns – and accordingly it receives more generous treatment at the hands of copyright.
Again, it is literary copyright that protects software programs.
Most modern websites are backed by a database system such as MySQL. Databases are given special protection in EU and UK law, but may also be protected by copyright. I look at both copyright and database right here, on the grounds that the latter shares many of the characteristics of copyright and could plausibly be categorised as a species of copyright.
First, we must distinguish here between database software, database structure and the dataset stored in a database. A “database” is defined in the legislation as any “collection of independent works, data or other materials arranged in a systematic or methodical way, and … individually accessible by electronic or other means”. This definition includes the dataset and, assuming there is a dataset, arguably also includes the database structure – but it does not include the database software.
Database software will be protected in the same way as any other software.
Databases in the legal sense may be protected by copyright if they are the author’s own intellectual creation. However, many website databases – often created by the database software using standard structures and populated by the “owner” and website users without much if any thought as to the exact database structure – will not pass this test.
In addition, databases will benefit from the protection of the sui generis database right if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. A substantial investment in creating the contents of the database will not be sufficient to bring a database within the scope of protection so, again, many website databases will not benefit from this right.
A graphic logo will usually be protected as an original artistic work. The law of registered trade marks and/or passing off may also protect against the misappropriation of a logo.
Illustrations and photographs
Illustrations and photographs, like logos, may be protected as original artistic works.
Music and video
In copyright terms, music that is streamed or downloaded from a website is a “sound recording”, whilst video is “film”. Both sound recordings and films are protected by special entreprenerial copyrights. No originality is required for the protection of the entreprenerial copyrights.
In addition, there will usually be underlying rights. In the case of sound recordings of music, the underlying rights may include musical copyright in a composition, literary copyright in a song, and performers’ rights. In the case of a film drama, the underlying rights may include, dramatic copyright in the screenplay, musical copyright in the soundtrack, artistic copyright in any graphics and images used in the film, and so on.
Subject to my comments above regarding logos, brand names – such as COCA COLA, KODAK and GILETTE – will normally fall foul of the de minimis rule: copyright will not protect them, because they are too small. They may well, of course, be protected by the law of trade marks and/or passing off.
Look and feel
The starting point for considering the question of whether the look and feel of a website will be protected is: it won’t. This was confirmed in Navitaire v Easyjet, where the court found that the look and feel of a produced by Navitaire for Easyjet website was not protected by copyright.
However, notwithstanding the case law, it is easy to image a website where the general design constitutes a graphic work, and the copying of that work would constitute infringement.
Famously, there is no copyright in an idea. Insofar as business ideas and ideas for websites and business processess instantiated in websites are concerned, that maxim holds true. In most cases, under English law, the only way to protect such ideas is by means of the law of confidence and contractual non-disclosure agreements. And those protections fall away once the site is live.