With no guaranteed way for you to limit your copyright or trademark liability, the best protection you have against copyright claims is a written, signed contract with your subscribers, a technology and intellectual property law specialist told an ia2000 seminar Friday afternoon.
"The subscriber should have to consent to allowing any of his or her own copyrighted material that he or she uploaded onto the page, to be freely copied, distributed, displayed, performed, and adapted," said attorney Anthony Lupo of Arent Fox, Kinter, Plotkin and Kahn, a Washington, D.C. firm, in a paper he presented to the seminar, "Protecting Yourself From Liability on the Internet".
"The subscriber should also agree to release the Internet page owner from any liability for copyright infringement that may arise out of the uploaded material," he continued. "This protects against claims by the copyright owner who uploads his or her own material onto the page and later claims he or she did not give permission for the material to be displayed or distributed."
Lupo says existing copyright principles do not neatly mesh but, rather, collide with the Internet.
"On the one hand," he says, "Internet users, Internet page owners, and Internet Service Providers can be held liable for copyright infringement, even though they had no actual knowledge" of a copyright's existence on a particular work. "On the other hand," he continues, "the Internet poses a serious threat to copyright owners, since the near-zero marginal cost of copying and distributing…could significantly impact the…owner's potential to control the work and recoup their investment."
Another problem, Lupo adds, is that companies who commission a Webmaster to create a Web page do not specify - in writing - who owns the copyright in the page itself.
"Unless the contract (specifies) who owns the copyright," he says, "the Webmaster will likely be considered as the owner of the page."
Other ways you can limit your copyright or trademark liabilities, or protect your copyrights and/or trademark, Lupo says, include:
Subscribers should specify that they have all rights necessary to submit the information they are uploading. \nThe page owner should state it takes no responsibility to determine protected information. \nA contract should include an indemnity clause - requiring subscribers to indemnify the page owner against third-party actions charging intellectual property violations or improper use. \nThe page owner should make subscribers agree to no commercial exploitation of any page information without permission in writing from the owner. \nAn ISP should guarantee its contract for page hosting let them suspend or end services for those pages if the ISP gets complaints regarding page content's copyright infringement.\n"These suggestions are not exhaustive and are not foolproof," Lupo says, "but they should help to protect the Internet page owner if legal action is brought against it for posting protected materials."
