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Copyright protection on Internet sites.

A hot topic which concerns a lot of online businesses is copying (retrieving or stealing) website content - its texts, graphics, designs, photos and commercial concepts. The trend on a global and national level indicates that within a few years, any good, including author's works - books, musical works, architectural projects, computer programs, etc. will be offered predominantly online. This fact calls for increased attention paid to the adequate copyright protection of the content of the Internet sites as well as to the formulation of the clearer general terms and conditions for their use in order to avoid unscrupulous practices carried out by third parties.

This statement will address the main guidelines that should be marked as a means of protection and prevention against the illegal "copying or theft" that is done with respect to the content or functionality of the Internet sites.

1.One of the main issues on the agenda in the described context is how to obtain sufficient documentation that gives us the right to claim copyright in our own site?

The Bulgarian Copyright and Related Rights Act (Bulgarian abbreviation - ZAPSP)  itself shares the legislative view that a work of art originates from the moment of its creation (Art. 2 of the ZAPSP) but the law practice clearly shares the view that this moment should be individualized through the respective written evidence. That is why it is important to be able to predict the option of proving in court, of course, if necessary, the ownership of the site, and the author of the works and the content that is part of it. In my opinion, exactly because of this should be specified the contractual relationship between the ordering party and the contractors - programmers, web designers, etc. on the basis of which to regulate the copyright moments for the creation of the site - who the author is or, respectively, to whom do the rights of use on a work belong, and so on. Here, naturally, there are several different hypotheses. There is a difference in whether a site is created within an employment relationship or on demand. Unless it is agreed otherwise, the employer owns the copyrights on websites (which are programmed) and databases created within an employment relationship (Article 14 of the ZAPSP). The copyright on a computer program (in this case an internet site) or a database created for the employer under Art. 14 of the ZAPSP, continues 70 years after the publication of the work (Article 28a of the ZAPSP), that is to say after the publication of the website on the Internet. This date can easily be found out through the appropriate hosting company. The same example, which applies to contract programmers, also applies to web designers who work for a web site developer.

Another possibility concerns the order of an Internet site in the case of Art. 42 of ZAPSP. This hypothesis is related to the commissioning of an individual website by an individual or company to a dedicated team of developers or web designers to create a site on demand. Here authors become the developers and respectively the web designers, and the person who ordered it has the right to use the web site without the author's permission for the purpose for which it was ordered. Of course, there is the opposite option. It concerns the elaboration of an Internet site on the order of the author under Art. 11 of ZAPSP. In this case, the copyright on pre-compiled databases and everything related belongs to the person who has selected or arranged the incorporated works and / or materials on a future site. This author may contract a web site to a company or team of programmers and web designers to agree that the copyright belongs to the author under Art.11 of the ZAPSP and the programmers are only the executors of the contract (argument on the contrary of Art. 42 of the ZAPSP). For this purpose, in addition to signing a contract, it is required in practice to create two transmission reports - one for the transmission of the original author's materials, which are related to the content itself, the functionality of the site, etc. The second pass-through protocol serves to transfer the final site, in which it is also indicated in the appropriate manner that the author of the work is the ordering party.

Under the three hypotheses examined, the employer (Article 14 of the ZAPSP) and respectively in the two hypotheses the commissioner examined under Article 42 of the Copyright and Related Rights Act would easily be able to support with documents their claims against third unscrupulous persons who copied or borrowed content from an Internet site. Any other behavior not related to the availability of the necessary written evidence that indicates authorship or leads to the authoring process of the programming and content of the site would make it impossible or compromising the assertion of copyright in respect of it, in the provided legal ways.

2. If we look at a website as a work of art in the hypothesis of Art. 3 (1), item 1 of the Copyright and Related Rights Act and Art 3, (2), item 3 of the ZAPSP, it is necessary to mention a few things. First of all - I think that if we are talking about programming a website, we cannot talk about authors' works when it comes to a website that is a "ready platform". These sites do not fall under the hypothesis of Art. 3, (1), item 1 of the Copyright and Related Rights Act, for the simple reason that the computer code and the programming as a whole represent an author's work on the "writing" of the program which, within the meaning of the Copyright and Related Rights Act his related rights are a type of literary work. Quite different is the situation with the web sites that are programmed and created for specific scientific (university site), commercial (bank or company site) or artistic purposes (gallery site), with specific program functionality. It is this code that is interesting for copying and duplication in the creation of "new or similar" websites by third parties with wrong intentions, so the author's authoritative work on the programming of an active website is subject to copyright protection. Despite this statement, it is correct to note that for both types of "ready platform" websites and those that are subject to real programming when they are created, another type of atonement or theft can be made, which is directed to their content.

The very content of the site is usually a complex and targeted compilation of a database under the hypothesis of Art. 3 (2) item 3 of the Copyright and Related Rights Act, which includes different objects of copyright. A frequently asked question is whether the text content of a website is subject to copyright protection, and the answer to it may have several variations. If the content of the site includes the presentation of technical and industrial goods or services, such as the presentation of new or innovative technical methods and technologies, which represents a specialized technical literature, it is definitely an author's content of Art. 3 (1), item 1 of the Copyright and Related Rights Act. The same can be said for websites that present literary texts or works of scientific literature, as well as those websites or blogs that hold a publicity focus. Of particular interest are, for example, the websites of newspapers or other types of publications and electronic media, which are often the subject of intellectual theft. These sites usually compile publicity works that are protected under the hypothesis of Art. 3 (1), item 1 of ZAPSP (e.g. articles of authors) and the graphic layout of the respective printed edition (Article 3 (1), item 9 of the ZAPSP), as a whole, they are an electronic periodical edition, made up of other works or materials (e.g. photographs) - Art.3 (2), item 3 ZAPSP. Especially with regard to the published news on such sites, which are not authors' articles but simply reflect current events, facts, information and data in summary, it should be said that they are not subject to copyright protection (Article 4, point 4 ZAPSP). Not all written content on an Internet site may be a work of art within the meaning of Article 3 (1), item 1 of the Copyright and Related Rights Act.

Therefore, as already mentioned, the creation of text or the electronic formatting of compiled text or assembly databases in the case of Art.11 of the ZAPSP, which will be part of the content, is advisable to be assigned to an external person with a contract under Article 42 of the Copyright and Related Rights Act. Firstly, in this way the creation of written content on the site will be assigned to a specialist who is aware of keyword optimization, which is important to the site's future rating, and will result in its better functionality. Secondly, if necessary, it will be proven that certain content has been produced specifically for this site on the basis of contractual relations. In this practical way, if the content of the site is publicly disclosed, its content is borrowed unscrupulously, it will be proven on the base of the written evidence of the fact that it is assigned to the content in electronic form, that was derived from certain original authoring materials which have been given with the transmitting protocols and based on them the corresponding part of the website has been created. This also applies to external authors of content for a particular site - for example, photographers working for it. They must be subject to separate copyright contracts or simply to sign a declaration to grant rights free of charge to the use of rights relating to copyright works that will be part of a website in one way or another. Respecting these simple rules obviously leads not only to the protection of the website owner but also to the authors themselves (in particular, if they are different from the owner), and this "documentary discipline" is the base of the successful assertion of rights on the Internet.

Unlike the European legal system (and the Bulgarian as a part of it), which presumably assumes that a software product (website) originates from the date of its creation, the Anglo-Saxon law provides the option of registration in respect of such a work of copyright. The US Copyright Office offers the registration of databases, computer programs and Internet sites as copyright works, which protection covers all 165-member states of the Berne Convention. The procedure is simplified and is related to the possibility of electronic uploading of screenshots from the website's design as well as other images which can be registered (photographs, drawings, sketches, paintings), description of written documents outlining business models, as well as depositing between 25 and 50 pages of source code to show the actual technical functionality of specific buttons on the website or other processes that occur at a "low level" (the computer languages on which the website is programmed and the user does not see it). The procedure takes about a year, and upon its finalization, the copyright owner (upon payment of a fee) receives an official registration certificate, and the work itself is assigned to the US Congress Library, which effectively administers and shelters the US Copyright Office. This method of registering websites, databases and computer programs is one particularly effective legal mechanism for several reasons. Firstly, the listed copyright objects are not subject to patents, and this option solves one practical problem regarding their real legal protection. Secondly, on the base of the described procedure, the author receives a protected official document, which has legal force on a vast territory that practically covers the most industrialized countries in the world. Thirdly, the procedure is modern, because it offers the possibility of remote deposition of copyright materials and their protection by using a modern electronic tool of the respective institution. In this context, no explicit representation by a local copyright or patent attorney in the United States is required here. Fourthly, compared to patents or trademarks, for example, which are declared internationally, this protection is considerably cheaper.

3."Similarities, Copies and / or Retrievals" or how to locate unauthorized use of content from our website without authorization by the law? The first way to detect a copyright infringement on the internet is the so-called word-of-mouth method, usually by colleagues or people working in the same industry we find out that content from a particular site is also used elsewhere. In these cases, in order to detect the offender, you can try to include some unique content from your site in the Google search box by using quotation marks around the text. Use a sentence or part of a sentence because those who "borrow" someone else’s content sometimes make a slight change to the text in order for the "change" to meet their needs. Of course, in most cases it turns out that plagiarists are lazy and copied the information word by word. If you own the rights to unique author's graphic design, photos, or other author's artwork located on your website and want to find out if someone else is using them, enter the file name in Google's image search engine http://images.google.com.

Through those easy-to-use methods you can find out within seconds how much copyright content has been used on a particular site. Usually the unauthorized use of content leads not only to copyright but also to technical negatives. Affiliation or copying of content from a website may harm its ranking in search engines, as practice shows that when the offending website's content is for example with more consumer traffic and certain content gets into it, then this leads to better indexing of the plagiarist’s website. In this way, certain "stolen or similar" content may positively affect the site of the offender rather than the site of the author of the content. All this can also damage the reputation of a particular site due to the fact that the user of certain information will become confused about the true author of a given content. What should you do when you find that the content of your website has been the subject of a copyright infringement? Find and write down the pages in which you found your own copyright content, possibly making a screen shot of the page, if possible. You can also print or save the HTML on the page if the infringement is also concerning a low-level content (that is, the site code programming). These actions are also necessary due to the fact that the Civil Procedure Code (from Bulgarian transcription GPK) has already authorized the use as a written proof of electronic documents (Art. 184 GPK). Therefore, the above mentioned actions will be justified mainly because of the need to file written evidence in the court on the  committed copyright infringement in respect of the content of a website. Thus, claiming certain facts and circumstances concerning the unauthorized copying or retrieval of content from your website will be facilitated both in the eventual voluntary resolving of the dispute and in a future court proceedings in which you will be able to present the electronic document on a paper carrier as a transcript.

All that has been said up to now is related to the circumstance that for one copyright claim for allegedly infringing website content two things must be proven: firstly, that the material belongs to you and secondly that it was improperly reproduced. In this regard, you need to be sure that the content of your website is author’s work and it has been based on a long period of time on a particular server. All this can be proven if you use the search engine http://www.archive.org. Here you can enter the address of your website and see the changes in it for many years, thus you will prove that you are the owner of the site, and then track down the content posted on the website. This is important in terms of the hypothetical thesis of the offenders that certain content has been published by them long before it appears on your website, thus creating doubt about the authorship of a particular material posted on the Internet.

4.Once you find the content that has been copied or retrieved, you need to find the owner of the website in which that content has been published. Most websites have a contact button or have contact information at the bottom of each page. Write down this information, as this will be the physical or legal person whom you need to contact for negotiating and resolving the problem. My practices as a lawyer suggests that you should start negotiating with the owner of the “plagiaristic site” and try to resolve the dispute voluntarily in good faith and good commercial practices. For this purpose, you should make a formal claim based on the relevant documentation and request unauthorized copied content to be removed in a short time from the offender's site. The letter may be in electronic form by sending it by email but it is preferable to send it by mail for two reasons. Firstly, you are creating additional written proof of the circumstances of the copyright infringement against your website, and secondly, the postmark has a probative value in court for the date of dispatch and receipt of the notification. You can attach documents to the letter that prove the claimed copyright.

In conclusion, you should notify the offender of the possible criminal, civil and administrative legal consequences of not removing the illegal content from his website. If all of this does not give the desired result, as a penultimate preventive step you can contact the hosting company hosting the violating website and inform them of the copyright infringement. In this letter, ask the hosting company to thoroughly review your claims by applying the relevant already described documentation. If the owner of the offending website does not listen to the hosting company's warnings, the hosting company usually downloads this website from the server, and this is something that you should explicitly insist on. However, if none of the options described lead to a voluntary resolution of the dispute and the removal of illegal content from the Internet, you have two last versions. The first one is related to the referral of the prosecution for a crime in the hypothesis of Art.172a of the Criminal Code. The second option concerns the filing of a civil claim under Art. 94 of the Copyright and Related Rights Act for infringement of copyright and corresponding compensation for the damages suffered as a consequence.

5.How can we protect our site against copyright infringement? First of all, you must designate any work that is part of the content of the site with the corresponding copyright sign that indicates the existence of copyright. At the bottom of each page also place the symbol ©, as well as the year of the first posting on the website and the current one (for example, 2004 - 2011). It is obligatory to mention in an appropriate way the copyright owner - the relevant legal entity, including the title "All Rights Reserved". Purely technically, the website can be copy protected by installing the so-called "JavaScript", by drafting this scripting practice you will encode your site. Subsequently, when someone tries to copy content from your website, he will receive a message that tells him that the acquisition of your content is not allowed. Another technical option is the so-called "transparent seals" that indicate that the content is protected by copyright (this is often used in photos in photo-forums). The downside of those two technical ways of protection of the content is that they can lead to a slower load on your page. A similar way to protect content is to embed the whole website in Flash. However, this may have a negative effect on your rating on Internet search engines as they would begin to experience difficulties in "reading the website's main text," which in turn leads to low or no indexing.

Another means of proving ownership of the content is to include copyright information in comment tags in your site's HTML code. If a website user subsequently decides to take up your entire page in an unregulated manner, he will not understand that you have placed your own information in inconspicuous places in the code, and you will have an electronic way of demonstrating your copyright. For search engines, you need to put contact information in the Meta tags of your website's coding, but anyway you should include comment tags that are copyright-related and that are deeply encoded.

6.What content published on the Internet can be used freely? This is any content that is not subject to copyright, namely: statutory and individual acts of state authorities as well as official translations; all laws, ordinances, conventions, agreements, etc; ideas and concepts - these are all developments that are not subject to patents, trademarks, designs, copyrights, etc; folklore works - all works of folk art that are anonymous or whose copyright has expired, but not their edits; news, facts, facts and data - these are publicly known circumstances that reflect current events. In my opinion, another type of regulated free use of author's works may be that specified in the case of Art. 24 (1), item 5 of the Copyright and Related Rights Act. This case concerns the use of publications or scientific articles that have already been made public in the event that such use has not been explicitly prohibited in the reference to the source and the author's name. The same can be said for example for photographic works and their use in the hypothesis of Art. 24, (1), item 6 of the Copyright and Related Rights Act. These photographs may also be used on a website different than that of the author (for example in an Internet newspaper), but only if they are related to a current event in order for these works to be used by the media in a limited volume justified by the goals of the information, indicating the source and the author's name. All other variations of the free use of Internet content are also indicated in the other hypotheses of Article 24 of the ZAPSP, but must be strictly used because of the possibility of risk of someone’s copyrights being violated.

  

Author: Mr. Atanas Kostov – copyright attorney