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This article explains how to protect your own intellectual property online and prevent infringement of others’ rights.
Introduction
Every website is a collection of intellectual property. Intellectual property law protects, to varying degrees, the text, images, design, code, branding, and multimedia content that comprise a website. Yet many businesses pay insufficient attention to IP, or intellectual property, when building and operating their websites, both in terms of protecting their own rights and respecting the rights of others.
trademarkThe consequences of getting this wrong can be severe. Using an image without permission can lead to a copyright infringement claim. Adopting a trading name or domain that is confusingly similar to a registered trade mark can result in passing off or infringement proceedings. Failing to assert your rights can make it harder to enforce them when someone copies your content.
This article, the sixth in our compliance series, examines the key areas of intellectual property that every website owner needs to understand: copyright, trademarks, and the practical steps you should take to protect your business and avoid infringing the rights of others.
Copyright: What It Protects and How It Applies Online
Copyright arises automatically in the United Kingdom under the Copyright, Designs and Patents Act 1988. There is no registration requirement. Any original literary, dramatic, musical, or artistic work is protected from the moment it is created, provided it involves a sufficient degree of skill, labour, and judgement. For websites, copyright potentially protects the text content, photographs, illustrations, graphic designs, videos, audio recordings, and the underlying source code.
The first owner of copyright is generally the author or creator of the work. However, where a piece of work is created by an employee in the course of their employment, the employer is the first owner. Where a work is commissioned from a freelancer or agency, the position is different: absent a written agreement to the contrary, the freelancer or agency retains copyright. This problem is one of the most common sources of IP disputes involving websites. Businesses frequently commission web designers, photographers, or copywriters without securing an assignment of copyright and later discover they do not own the content on their own website.
The duration of copyright in the UK is generally the life of the author plus 70 years. For photographs, the same period applies after the photographer’s death. For typographical arrangements, copyright lasts 25 years from first publication. These long protection periods don’t lessen the risk of infringement as the content ages.
Using Third-Party Content: Licences and Permissions
If your website uses any content created by someone other than your employees, you need a licence or assignment. This applies to stock photographs, fonts, icons, video clips, music, code libraries, and any other third-party material. The terms of stock image licences vary considerably, and it is essential to read and comply with them. Some licenses restrict the types of use permitted; limit the number of impressions or viewers; or prohibit use in certain contexts, such as products for resale.
A common misconception is that content found freely on the internet is free to use. It is not. The absence of a copyright notice does not mean the content is unprotected. The fact that an image appears in a Google search result does not mean it is available for use. Even content shared on social media remains protected by copyright, and the terms of most social media platforms do not grant third parties the right to reproduce material posted by their users.
The concept of fair dealing in UK law provides limited exceptions for purposes such as research and private study, criticism and review, reporting current events, and quotation. However, fair dealing is much narrower than many businesses assume. Using a competitor’s product images on your comparison page, or reproducing substantial extracts from a blog post with attribution, is unlikely to qualify as fair dealing. The safest approach is always to obtain permission or use properly licensed content.
Trademarks: Protecting Your Brand Online
A trademark is a sign that distinguishes the goods or services of one business from those of another. It can be a word, logo, shape, colour, sound, or combination of these. In the United Kingdom, trademarks can be registered with the Intellectual Property Office, which provides the owner with a statutory monopoly over the use of the mark in relation to the goods and services for which it is registered.
For websites, trademark issues arise in several contexts. Your business name, logo, and product names should ideally be registered as trademarks to provide maximum protection. Your domain name should align with your trademark portfolio; operating under a domain that infringes another party’s registered trademark can result in proceedings under the Uniform Domain-Name Dispute-Resolution Policy or a claim for trademark infringement.
Equally, you must ensure that your website does not infringe the trademarks of others. This includes avoiding the use of competitors’ trademarks in your metatags, keywords, or paid search advertising in a way that causes confusion. The law on the use of trademarks in comparative advertising and keyword advertising is nuanced, and it is an area where businesses frequently misstep.
Domain Names and Trademark Conflicts
The relationship between domain names and trademarks is a frequent source of disputes. Registering a domain name does not give you trademark rights, and owning a trademark does not automatically entitle you to a corresponding domain. Where conflicts arise, the trademark owner generally has the stronger position, particularly if the domain name was registered or is being used in bad faith. The Nominet Dispute Resolution Service handles .uk domain disputes, while ICANN’s UDRP covers generic top-level domains.
Protecting Your Website Content
While copyright arises automatically, there are practical steps you should take to protect your website content and make enforcement easier. Including a copyright notice on your website, typically in the footer, puts visitors on notice of your claim to ownership. Although not legally required in the UK, it can help demonstrate that copying was deliberate.
Your website terms and conditions, as discussed in Article 1 of this series, should include clear provisions asserting your ownership of website content and restricting what visitors may do with it. They should prohibit the reproduction, distribution, or commercial use of your content without your written permission and should address the specific issue of deep linking and framing, where other websites embed or display your content within their own pages.
For businesses that produce valuable original content, such as articles, research, photographs, or designs, it is worth considering technological protection measures. These might include watermarking images, disabling right-click saving, or using content delivery networks that make scraping more difficult. None of these measures is foolproof, but they add layers of protection and can help establish that copying was deliberate.
User-Generated Content
If your website allows users to upload or submit content, such as reviews, comments, images, or forum posts, you face a dual IP risk. First, users may upload content that infringes the copyright or trademarks of third parties, potentially exposing you to liability as a host or publisher. Second, you need to secure sufficient rights over the content users upload to enable you to display and use it as intended.
Your terms and conditions should require users to confirm that they own or have the right to submit any content they upload and should include an indemnity against claims arising from user-generated content that infringes third-party rights. You should also secure a licence from users that permits you to display, reproduce, and, if necessary, modify their content for the purposes of operating the website. This licence should be broad enough to cover your legitimate needs but not so broad as to be considered unfair under the Consumer Rights Act 2015.
You should also have a clear process for handling takedown requests. Under the Electronic Commerce Regulations 2002, hosting providers can benefit from a safe harbour defence against liability for user-generated content, provided they act expeditiously to remove or disable access to infringing material upon becoming aware of it. Having a published notice-and-takedown procedure strengthens your position and demonstrates good faith.
AI-Generated Content
The increasing use of artificial intelligence tools to generate website content, including text, images, and code, raises new and evolving IP questions. The UK’s position on copyright in AI-generated works is set out in Section 9(3) of the Copyright, Designs, and Patents Act 1988, which provides that where a work is computer-generated, the author is the person who made the arrangements necessary for its creation. However, the application of this provision to modern AI systems is untested and uncertain.
There is also a significant risk that AI tools may generate output that inadvertently reproduces or substantially copies existing copyrighted material. If you use AI-generated content on your website, you should review it carefully, conduct reverse image searches where appropriate, and ensure you have the rights to use any AI-generated material under the terms of the AI platform’s licence agreement. Such a scenario is a rapidly evolving area of law, and businesses using AI-generated content should seek specific legal advice.
Practical Steps for IP Compliance
Start with an IP audit of your website. Identify every piece of content and determine who created it, who owns the copyright, and what licence terms apply. Pay particular attention to images, fonts, and third-party code libraries. Ensure that all freelancer and agency contracts include a clear assignment of intellectual property rights to your business.
Register your key trademarks if you have not already done so. Review your domain name portfolio to ensure it aligns with your trademark rights. Include comprehensive IP (intellectual property) provisions in your website terms and conditions. Establish processes for monitoring potential infringement of your content and for responding to claims of infringement by others.
Finally, train your team. The person responsible for updating your website needs to understand that they cannot simply download images from the internet or copy text from competitor sites. Providing clear guidelines and approved sources of licensed content is the most effective way to prevent inadvertent infringement.
Conclusion
Intellectual property is the lifeblood of your online presence. Your brand, your content, and your creative output are all valuable assets that deserve protection. Equally, respecting the intellectual property rights of others is not merely a legal obligation but a matter of professional integrity. A proactive approach to IP compliance, which includes proper licensing, clear contractual terms, and regular auditing, protects your business from costly disputes and ensures that your website is built on solid legal foundations related to intellectual property (IP).
Need help protecting your intellectual property?
Lawdit Solicitors specialises in intellectual property law. From trademark registration through the Trademark Room to comprehensive website IP compliance via StayLegal, we can help protect your business online. Visit lawdit.co.uk to find out more.
Next in this series: Article 7 – Email Marketing and PECR: Lawful Marketing, Consent, and Avoiding ICO Enforcement
