It is easy to think that once you have purchased your domain name, written your content and hired a web developer to implement your designs, the rights to your website will belong to you. However, very often this will not be the case.
There are lots of different components to a website, such as the design, the coding, the domain name and the text and images. Some of this may have been created by you but some may have been created by others. Depending on the component in question it is possible that several intellectual property rights may exist in your website. Unless you have secured these rights, it is possible you may not have total control over your website.
Here are the considerations that you need to think about.
Intellectual property is something unique that a person has created. Intellectual property rights exist to help the owners of intellectual property assert their rights in respect of their creations and to stop others copying or stealing them.
Intellectual property will exist in every website, whether it be in respect of the logo used, the text that appears on individual webpages or the coding which determines the way the website is laid out and formatted.
Broadly, there are several different categories of intellectual property that are usually found on websites and it is important to know who owns what in the event of a dispute.
Your website will be full of copyrighted material. Copyright is an automatic right which the author or creator of material is entitled to assert unless they waive the right to do so. As such, the authors of the text on your website will own the copyright, as will the creators of any audio recordings, photographs or pictures, unless you have agreed otherwise.
If an employee created the copyrighted material in the ordinary course of their work, then the business will be the copyright owner. However, if you have hired a subcontractor to create this material they will be the copyright owner. To ensure you remain in control of the text which appears on your website it is important that as part of the pre-contract negotiations you get the subcontractor to agree to transfer the copyright ownership to your business once the work has been satisfactorily completed.
Your domain name, company name and logo could all be registered as trade marks, if they meet certain criteria. There are benefits to registering your trade marks, including the fact that other businesses will be prevented from using the same or similar names, strap lines, slogans or logos. This is important as trade marks are often seen as a badge of validity which suggest that your brand is trusted and established. By registering trade marks, you can also ensure that your business’s name, and therefore reputation, is protected in law against competitors who might try to imitate you.
Business owners are often surprised to learn that they do not actually own their domain name but have the exclusive licence to use it, much in the same way as a telephone number. Therefore it is important that domain names are registered and that the registration details are kept on file by the business to ensure that registration can be renewed as and when required. There should be no problem if registration is undertaken by the business itself but problems can arise where an external agency is used and the registration details are not transferred to the brand owner.
What you own on your website and what you have the rights to will depend on what you agreed in your contract with your web developer. You need to review the terms and conditions of the agency you are using and pay careful attention to the intellectual property clauses.
The visual design of a bespoke website should be yours if you have commissioned it but this may not always be the case.
If your website is an adaptation of a pre-existing website or template layout then you are unlikely to own any rights to it.
If your website has been built on a content management system, such as WordPress, then you will not have any rights to the platform on which your website has been built; similarly, you will not own the server on which your website is hosted.
Careful thought needs to be given to the ownership of intellectual property rights in coding, content and data.
Disputes very often occur when a web developer delays the provision of the site or where the site does not meet the customer’s expectations or where the customer wants to move the site to another web developer. Often in these circumstances the customer will not pay and the web developer then refuses to pass on the website source codes or takes control of the domain name, which results in a deadlock.
When disputes arise, it is often due to the specification of the website having been poorly defined in the contract because of inadequate communication between the customer and the web developer. As a minimum, your contract with your web developer should:
Hosting, technical support and maintenance may also be included in the contract, but this depends on what you want from your web developer once the site has been built.
For further advice please contact the commercial team at our offices in Poole on 01202 725400 or Dorchester on 01305 251007. Visit us at www.hklaw.eu and follow us @HumphriesKirk on Facebook, Twitter and LinkedIn.