Copyright - Website
How is a website protected legally?
Depending on the nature of the website, other “works” may also be incorporated, such as computer software programs, musical works and films (video clips).
Save for films, it is not possible to register these copyrighted works in South Africa. Copyright subsists automatically, provided that certain requirements are met. Copyright is generally best protected by contracts between parties and clear legal notices.
Apart from legal aspects, there may of course also be technical mechanisms to protect online data and unauthorised access to websites.
If the website provides, for instance, for facilities to enable consumers to upload materials, as commentary and photographs, it is possible that the website owner will not claim ownership of the copyright in such materials. However, it is best that this aspect clearly be described in the Terms and Conditions which governs the use of the services offered by the website.
The website’s Terms and Conditions should include a clear copyright notice on the ownership and usage terms of the copyright of all materials available on the website. Alternatively, a separate Copyright Notice could be added.
Generally, it is good practice to indicate a general copyright notice at the bottom of the website which could simply read as something like: De Kock Attorneys © 2015.
In this regard, if for instance, the use of a domain name constitutes trade mark infringement, the infringed party could apply to the High Court for an interdict in terms of the Trade Marks Act. Alternatively, the infringed party could institute a Domain Name Dispute with the .CO.ZA Domain Name Authority at DomainDisputes.co.za. If successful, the Adjudicator could order the transfer of the domain name which could result in the website being taken down from the internet.
The courts could provide similar relief if an interdict is sought based on copyright infringement or defamation or hate speech. The Electronic Communications Act also makes provision for the take down of websites which infringe rights of others.
However, when considering adopting or registering a domain name for use on the internet, if the domain name is distinctive, it is recommended that the availability of the domain name first be considered as a trade mark. In this regard, it is recommended that we first be instructed to conduct an availability search of the Trade Marks Register to ascertain whether the domain name is available as a trade mark. If the domain name appears to be available as a trade mark, for proper protection, it is recommended that the domain name be registered as a trade mark on the Trade Marks Register.
If you are instructing an Internet Service Providers (“ISP”) to assist with the registration of the domain name, it is advisable to give them express instructions to register it in your name so that the details of the registrant (owner) of the domain name on the domain name registers are correct.
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