De Kock Attorneys Copyright

Copyright - Website

How is a website protected legally?
Generally, a website may comprise a number of intellectual property rights which are protected by different South African Acts.


Copyright
The most important laws which apply to websites are copyright laws. In this regard, the Copyright Act lists a number of different types of “works” which are eligible for copyright protection. Some of the “works” which may be applicable to websites include the following:

  • literary works, which include the general readable content, newsletters, databases, emails and other information published on the website;
  • artistic work which may include logos, banners, icons, photographs and other graphic design elements; and
  • published edition which relates to the lay-out of the website and pages.

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.


Domain Names and Trademarks
The domain name, the business’ name and product names reflected on a website may also incorporate trade marks. Trademarks can be registered in terms of the Trademarks Act, and it is advisable to do so to ensure that third parties do not adopt or register the same name or a similar name which may confuse customers and internet visitors. Before starting a website, registering a distinctive domain name, or adopting a business name, it is strongly recommended that you first instruct us to conduct an availability search.


Terms and Conditions
Most websites are also governed by certain legal notices which create contractual relationships and bind visitors to certain terms and conditions for using the website. To protect consumers, and to disclaim the website owner of certain liabilities, it is necessary to set and publish reasonable and clear standard terms and conditions for using a website.

Apart from legal aspects, there may of course also be technical mechanisms to protect online data and unauthorised access to websites.


Who owns the copyright in a website?
The ownership of the copyright relating to a website would depend on the nature and functionality of the website. However, generally, the ownership of the copyright in the design, lay-out and the specific concept of a website will be claimed by the owner of the website. In the event that the website owner contracted a graphic-designer to assist with the website design, the ownership of the website design may vest in the independent graphic designer. To ensure that the website owner acquires the ownership of the copyright, it is necessary to enter into a written agreement with the graphic designer to take assignment of the copyright. In this regard, it should be borne in mind that copyright can generally only be assigned in writing.

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.


What mechanisms exist to remove a website?
A website can be attacked and taken down under certain circumstances provided for in a number of South African Acts.

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.


Who owns the domain name of the website?
Generally, a domain name is registered on a “first come, first served” basis. This means that if you apply to register a certain word or phrase as a domain name, and no one else has thought of registering the exact same word or phrase under the same domain name level, you are likely to obtain registration and become the owner of the specific domain name.

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.


Need further advice?
Please note that the information above is of a general nature. If you require formal advice or assistance with registrations or drafting of appropriate agreements to protect your website, please contact us with your specific query. We look forward to hearing from you.


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