A business’ website is an essential marketing tool, and owners are now increasingly aware that designing and maintaining an eye-catching, unique, creative and informative site is crucial to their success. Coming up with a unique and creative website design, however, can be extremely challenging. While it can be tempting for business owners to draw inspiration from, or even flat out copy, the design and content of another website, this can raise serious legal concerns with significant consequences. We discuss the key points you need to know if you are considering copying or drawing inspiration from another website.

Websites are Combinations of Different Types of Content

Even the most basic websites are made up of various types of creative content. A site’s text, images, sounds, animations, and layout (as well as the underlying source code) are all separate components that contribute to the overall functionality and ‘look and feel’ of the website. Some of these components may be common (for example, the code to produce a three column layout), while others (such as photographs or graphics) may be uniquely created for that particular website. In all cases, however, it’s important to remember that each of these components attracts legal protection. In most cases, this legal protection is in the form of copyright.

Copyright

Copyright is the legal term for a ‘bundle of rights’ that applies in relation to original creative content such as text, graphics, photographs, sound recordings, video, and even computer source code. Copyright provides the copyright holder with exclusive rights to copy, transmit, use, publish, or modify the content to which the copyright applies. In most circumstances, the original creator of the content owns the copyright first. It exists automatically from the time the content is created and does not need to be registered.

For example, the author of a short story who publishes online will be the owner of the copyright in that story. This author has a legal right to stop other people from making copies of her story, or modifying and republishing her story without her permission. The same principle applies to other creative works.

Original creative works published in Australia (including those published on the Internet) are automatically protected under the Copyright Act 1968 (Cth). While copyright does not protect whole websites, in most cases the parts are, including the text, images, animations, sounds, and source code.

Copying and republishing parts of a website (or even the whole website) without the permission of the copyright owner will generally constitute copyright infringement. While there are some exceptions and defences to copyright infringement, if you copy the content (such as the text and images), or ‘design’ (such as the layout, implemented in source code) of another business’ website, you may be infringing their copyright. Consequently, you could be required to remove the infringing content as well as being liable to pay compensation.

In many cases, you might not need to ‘copy’ the content available on another website to replicate the original website’s design. While copying source code would amount to copyright infringement, re-implementing the design and functionality with new, original code, would not. It’s important to remember, however, that even if you produce all your own content to replicate another website, this may still be a cause for legal concern.

Passing Off and Trade Marks

The law of ‘passing off’ refers to the circumstance where one trader attempts to ‘pass off’ their goods or services as those of another trader, with the aim of benefiting from the original trader’s reputation. In many cases, this conduct would involve using the same or similar trade mark or trade name. However, passing off can still occur even though the business names may be different. When it comes to websites, this can happen if one business replicates an existing business’ website in a manner that could mislead their customers about whose products they are purchasing.

In some circumstances, trade mark law may also protect aspects of another business’ website. A trade mark is a sign used to distinguish one person’s goods or services from those of other traders. Trade marks are most commonly names, logos and slogans, but can also include sounds, shapes, and colours. Using or displaying trade marks that another competing or similar business owns may constitute trade mark infringement, and business owners should be wary of copying specific elements of the design of other websites.

How Can I Protect My Website’s Design from Unauthorised Copying?

As the internet is a public forum, it can be difficult to prevent other people from copying your material. In one sense, even a person visiting your website is making a copy of it on their local computer! While ordinary communications like this would not constitute infringement, further modification and republication of your website would. There are several things website owners can do to protect their website content and material from unauthorised use.

Make it Unavailable or Difficult to Copy

While it can be difficult to prevent others from copying images and text that are obviously displayed on your website, aspects of your source code can remain hidden from your website visitors. If your website includes unique functionality that you wish to keep secret, where possible you should consider implementing this functionality in source code executed on the server side, rather than client side. For example, a sensitive data processing function could be implemented in PHP instead of JavaScript. Naturally, this may increase the load on your IT infrastructure, so this decision involves weighing these technical concerns against the likelihood of infringement and the importance of keeping the process secret.

In other cases, technical measures can be implemented to restrict visitor input action (such as preventing the saving of documents or images), however such measures are likely to be mere obstacles for determined infringers.

Display a Copyright Notice

Even though copyright applies automatically, a notice of copyright ownership will inform visitors to your website that you are aware of and intend to protect your rights. A copyright notice takes the form of ‘© [Copyright Owner] 2016’.

It’s important to bear in mind that it is up to website owners to enforce their rights and take action when infringement is observed. Website owners should be vigilant and conduct regular checks of competitors and new businesses to catch infringement early. If it is allowed to continue, this can affect your rights and ability to enforce them.

What Should I Do If Someone Has Copied My Website’s Design?

Not all cases of copying will constitute an infringement of the original creator’s rights. Both copyright and trade mark law contain provisions prohibiting the making of groundless threats, so it is first important to establish that infringement is actually occurring. Once you have determined this, the next step is usually a formal letter to the other party requesting or demanding that they remove or change their website so that it no longer infringes your rights. That person may not know they have infringed your rights, so an amicable communication can often be an effective way to opening a discussion that results in a favourable outcome for both parties.

In more serious cases, or if the infringement continues, the next step may be a further letter or even commencement of legal proceedings. In all cases, however, obtaining legal advice early will help you to understand your rights and the best way to enforce them.

What if I’ve Been Accused of Copying?

If you have been accused of copying another business’ website, the first step is to determine whether the accusation has merit. Does the other party have the rights they claim to have? Are they able to enforce them against you? Does your conduct actually constitute infringement? These can all be difficult questions, and it is best to obtain legal advice before responding. Sending the wrong response could be viewed as an admission, and affect your ability to defend against a later claim!

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If you have concerns about copying of your website, or if you are worried you might be infringing someone else’s rights, it’s important to obtain sound legal advice. Get in touch with our IP lawyers on 1300 544 755. 

Daniel Smith

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