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Content:
Copyright
In A World Wide Web Site
Text, photographs, illustrations, graphics3, sound, video
and software applications
(which elements can be found on web sites)
are all works which can be protected by copyright law.
In addition:
(a) the actual HTML code can be protected
(as computer software or a literary work);
(b) a collection of links can be the subject
of copyright. Such a collection could fall into
the category of a "digest", which is protected
(like a database) by reason of the creativity
in choosing the individual elements;
(c) the layout of a page or site, namely
the location of the elements appearing on the page
and the organisation of the pages (the
site plan, which is generally reflected by the site map)
is apparently not per se the subject of
copyright protection. However, this is not certain,
especially when the layout includes a
work or the use of graphics, illustrations, Java
applications and the like as an integral
part of the page or site. Together, the choice of those
elements and their integration in the site might constitute a
"digest" and as such, be recognised
as a protected work.
Different elements might have different "owners".
A distinction must therefore be made between
"original works", which are created specifically
for the site and "existing works", that have been
created for other purposes, generally by
a third party, which it is sought to incorporate in the site.
As regards original works, it can be ensured
that the copyright in them belongs to the site owner.
So far as existing works are concerned, there
is generally a duty to obtain a licence from the
copyright owner and to use them subject to
the terms of the licence.
Stages
In The Creation Of A Web Site
The first stage is to define the object of
the site.
The second stage is designing the web site,
namely determining the elements which are
to appear on the pages and the relationship
between the pages.
In the third stage the site is built, constructed
or engineered, that is to say the code is written
and the various elements are actually incorporated
in the site.
The fourth and final stage is maintaining
the web site, when it is put on line and then
periodically updated, modified and the like.
This stage is a continuing one and of indefinite duration.
Do It
Yourself Or Through An Independent Contractor
Many companies offer web site creation and
maintenance services. The services can cover
all or only some of the stages mentioned
above.
The design and construction of a site can
be commissioned from an independent contractor
and then the site owner can personally put
it on line and maintain it. Alternatively, the whole
process can be commissioned from the contractor,
which can design, construct and maintain the site.
Moral
Rights In The Design And Construction Of A Web Site
As mentioned above, a web site has numerous
elements which are the subject of copyright protection.
Copyright has two aspects: the commercial
one (in accordance with the Copyright Act, 1911) and the
moral one (in accordance with section 4A
of the Copyright Ordinance, 1924).
Whilst the commercial right is transferable
by the author or creator, the moral right is personal and
retained by the author or creator, although
according to Israeli law (unlike French law, for example)
the moral right can be waived.
Although the right is personal to the author,
in the relationship between employer and employee,
Israeli law is unclear as to whether the
employee's moral rights in the work created by him for his
employer are retained by the employee or
pass to the employer. There is no unequivocal answer
in the legislation. Prof. J. Weissman, relying
on the personal character of the right and the Model
Law published by UNESCO and WIPO,4 sees two alternatives: either the rights are retained by the
employee or the employee is deemed to waive
them (in which case, having regard to the personal
character of the right, on being waived nobody,
including the employer, has any moral right in the work).
Prof. Weissman prefers the alternative whereby
the moral rights are retained by the employee.
5 It is interesting
to note that according to the new Copyright Law, which is currently
being formulated
by the Ministry of Justice, the moral right
will be retained by the employee.
On the other hand, there are those who believe
that the moral right passes to the employer,
based on section 5(1)(b) of the Copyright
Act, which provides that in the relationship between
employer and employee, the first owner of
the copyright in the employee's works is the employer,
unless otherwise provided between the parties.
The proponents of this approach view the said section
as applying both to the commercial rights
under the Copyright Act, 1911 and to the moral rights
pursuant to the Copyright Ordinance, 1924.
Thus, the employer is viewed as the first owner of all
the rights in the employee's work, including
the moral rights.6
The conclusion obliged by the aforegoing
is that there are two opposing views in Israel:
(a) the moral rights are retained by the
employee;
(b) the moral rights pass to the employer.
Consequently, all practical reference to
the issue of moral rights must take into account these
two conflicting possibilities.
The Proposed
Solution - What To Incorporate In The Contract With The Site Builder
(a) A distinction should be made between
original works, which the site builder creates for the
customer, and existing works.
(b) As regards original works, it should
be provided that all copyright in them belongs to the customer.
(c) As regards existing works, an accurate
record of those works should be made and the site
builder should be placed under a duty
to obtain the appropriate licences to use them on the site.
(d) It should be provided that the site
builder waives all his moral rights in the original works.
The contract should also prescribe complete
conditions both with regard to the mention of the
builder's name and concerning future modifications
to the site. The contract's provisions in
this respect will supersede the moral rights
in accordance with the law.
(e) In order to avoid any claim of copyright
(whether commercial or moral) by an employee of
the site builder, the builder should warrant
in the contract that its employees have no rights,
including moral rights, in the works, and
it should arrange for its employees to sign a written
contract of employment to that effect (or
for them to sign the site construction contract in an
appropriate place); and the builder should
undertake to indemnify the customer in the event
that any of its employees (or former employees)
claims a right in the work.
(f) In general, the builder should provide
an indemnity in respect of allegations by any third
party as to the existence of rights in
works on the site.
(g) The contract should also contain a
clause, whereby the builder will, at its sole expense,
remove any infringing work from the site
and replace it with a non-infringing work.
Appended hereto are model contractual provisions
with regard to copyright in the construction
of web sites.7 In the appendix, the site builder is termed "the Contractor".
It is emphasised that this is a mere
specimen, which presents one of a wide range of possibilities
for implementing the solution proposed
above. The contract draftsman should prescribe provisions
which are appropriate to the specific
contract and he is legally liable to ensure that the contract is
in
conformity with the circumstances.
Notes
- For a discussion of the nature of moral rights, see:Sarah Prizanti,
Copyright Law, vol. 2, p. 465 et seq;Prof. Joshua Weissman,
Droit Moral in Copyright Law, Legal Research 7, 5749, p.
51;Prof. Gad Tedeski,
Intellectual Property and Personal Rights, Mishpatim 10, 5740,
p. 392;Leslie Ellen Harris,
Just What Are Moral Rights Anyway? A Primer for DirectorsCharles
Oppenheim, Moral
Rights and the Electronic Library, http://www.ariadne.ac.uk/issue4/copyright/
General Note On References To Internet
Addresses: the references to Internet addresses
are based on information that was up-to-date when this document
was written. Addresses
change and documents are removed from the Internet. After the
publication of this document
it might therefore not be possible to find some or other document
at the address cited here.
The writer has therefore retained a printout of every document
from the Internet which is
mentioned here.
-
For a detailed discussion of the issue,
see Geoffrey Gussis, Website Development Agreements,
A Guide to Planning and Drafting, (draft 1.0, March 8, 1997),
http://www.digidem.com/legal/wda/wda.html
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As regards copyright in graphics generally
(not on the Internet), see: CA 360/83,
Strussky Ltd et al v. Whitman Ice Cream Ltd et al, PD 40(3)
340; and as regards the rights in the
graphic elements and graphic design of an Internet site, see:
Web Sites Feud Over Design, c/net,
March 29, 1997,
-
Model Provisions for National Laws
on Employed Authors, UNESCO/WIPO.CGE/EA/4,1986
-
Joshua Weissman, Droit Moral in Copyright
Law, Legal Research, vol. 7, 5749, pp. 51-78. At pp.
60-61 Weissman writes:
"Indeed, in the Model Law on Employed
Authors, prepared by the international organisations
WIPO and UNESCO, two alternatives were proposed. The first
- an author who is an employee
retains the right for his work to be ascribed to him, unless
he has expressly otherwise agreed
[i.e. the employee has agreed to waive his moral rights -
B.N.]; the other alternative - the author
is deemed to have agreed to forego having his work ascribed
to him, unless otherwise agreed.
We tend to prefer the first alternative,
whereby the employed author retains the right for the
work to be ascribed to him, unless there is an express agreement
in which the employee has
waived the right. The cases where difficult consequences might
apparently result from such a
situation will be resolved by means of the general proviso
which is proposed with regard to the
right, whereby the right is only to be applied in circumstances
where it is reasonable and customary".
-
Sarah Prizanti, in her work, Copyright
Law (vol. 2, p. 471), writes:
"The last category is that of employees who create works which
are published in the
employer's name. In section 5(1)(b) of the Copyright Act, the
legislature has laid down
a statutory presumption, whereby in the absence of contrary agreement
the employer
will be the first owner of the work, rather than its author, the
employee. That is with regard
to the economic right. In this context the question arises as
to whether the same presumption
also applies in respect of the right of 'paternity' and the other
personal rights [the moral rights - B.N.].
The answer is in the affirmative, according to the wording of
the section of the Ordinance and the
incorporation of the amendments to the Copyright Act 1911."Ms
Prizanti refers the reader, in
a footnote to the preceding paragraph, to Prof. Weissman's article,
supra, at pp. 60-61. In my opinion,
Prof. Weissman's article does not support her position. On the
contrary, Prof. Weissman believes
that the moral rights are retained by the employee.Ms Prizanti's
approach was adopted in a judgment
of the Jerusalem Magistrates Court in CF 2441/89, Cook
v. Skaler, which was published in District
Judgments 52(4) 3, 16 et seq. However, the Court's approach was
essentially based on an
economic analysis of the desirable law, the conclusion being that
the employee's retaining
the moral rights (in the absence of contrary agreement) is not
a reasonable commercial
result. At p. 18 of the judgment, the Judge wrote:"In truth, on
the one hand there might be
an initial tendency to say that the moral right is personal, inherent
to the author, not howsoever
transferable and in any event to be ascribed to the author. (Compare
J. Weissman, in his article,
supra, at p. 60.) However, from the practical point of view, befitting
the needs of life and the complexity
of the labour and creative relationship, such an approach cannot
be sustained in reality".
-
These provisions (adapted to Israeli
law and the specific needs of government ministries) are
based on the US company King & Spalding's web site development
contract. The contract appears
on the company's site and has been "dedicated" to the public
domain. The agreement can be found
at: http://www.kslaw.com/menu/agr.htm
Appendix
Section One - Ownership And Rights
1.1 Transfer Of Rights
1.1.1 Save for existing works, as provided
below in clauses 1.2 and 1.3, the Contractor
undertakes to assign, and on the creation of every work which
forms an element of the
site automatically assigns, to the State of Israel, its ownership
of the copyright in accordance
with Israeli and international law, together with alother intellproperty
rights in every such work
as aforesaid. For the avoidance of doubt, it is expressed and
agreed that all intellectual property
rights in the site, including the various works therein, shall
be transferred to the State of Israel,
subject as provided below in clause 1.2.
1.1.2 From time to time, at the State's
request, the Contractor and/or its employees shall confirm
such assignments as required by the State.
1.1.3 The State and all its successors
and assigns shall have the right to obtain and hold in its
own name all official registrations of its rights as aforesaid.
1.1.4 For the avoidance of doubt, it
is hereby expressed and agreed that the State may, after
acceptance of the site, make any use of all or any of it, including
the various works therein,
at Government offices, their units and in the Knesset, as it
deems fit, in reliance upon the rights
which it is acquiring in the site and the works therein pursuant
hereto. The provisions of this
clause shall not derogate from any other rights of the State
pursuant to this agreement or by law.
1.2 Existing Works
1.2.1 Insofar as any part of the site
(or the whole site) is an existing work, in respect where of
the Contractor may not assign the rights therein as provided
above in clause 1.1, the Contractor
shall specify below:
(a) the description and nature of the
existing work;
(b) the owner of the rights in the
work;
(c) any restriction or royalty payment
duty in respect of the Contractor's or the State's use
of the work or the work's exploitation as a derivative work;
(d) the source of the Contractor's
authority to make use of the existing work in the design
and construction of the site.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
1.2.2 The above-mentioned works are hereinafter
referred to as "existing works".
The sole existing works which may be used in the design and
construction of the
site are those specified above and any other existing work,
the use of which is
approved by _______________.
1.2.3 Furthermore, before preparing any
part of the site which is to include one
or more existing works, the Contractor shall, at its sole expense,
cause the State of Israel
to receive an international, perpetual, non-exclusive, royalty
free and irrevocable licence,
free of moral rights:
(a) to use the existing work and to
reproduce, display, distribute and sell copies there of
and prepare derivative works therefrom;
(b) to authorise or grant licences
to others to do all or any of the aforegoing.
1.3 Moral Rights
1.3.1 The Contractor hereby waives any
moral right it now or in future has in the works
which it or its employees create in the performance of its obligations
pursuant hereto.
1.3.2 The right of the Contractor for
its name or the name of any of its employees to be
ascribed to the site or to the works in the site and the right
of the Contractor (or of any of its
employees) to the integrity of those works are exhausted solely
by the provisions of this
agreement, as set out below in this clause.
1.3.3 The Name Of The Contractor Or Of
Any Of Its Employees (Alternative 'A')
The name of the Contractor and/or of
any of its employees shall not appear on the site.
1.3.3 The Name Of The Contractor Or Of
Any Of Its Employees (Alternative 'B')
(a) The name of the Contractor and/or
of any of its employees shall appear on the page
of the site entitled "About the Site", in accordance with the
technical specification, solely
as long as the site is maintained by the Contractor.
(b) After the site ceases to be maintained
by the Contractor, the name of the Contractor
and/or of any of its employees shall stop appearing on the "About
the Site" page or elsewhere
on the site.
1.3.4 Integrity Of The Site And The Works
Therein
After the site, including the works therein,
has been delivered to the State for maintenance
by it, the State may, itself or through anyone else on its behalf,
make any modification to the
site and the works therein without the Contractor's consent
or knowledge, and the Contractor
shall have no right to plead that such modifications are such
as to damage it, its honour or
reputation and no such plea shall be admissible by or in respect
of any employee or employees
of the Contractor who were engaged in the preparation of the
works.
1.3.5 Existing Works
The terms of the licences for the use
of existing works shall apply to the ascribing of names
thereto and modifications thereof.
1.4 Indemnity
1.4.1 In the performance of its obligations
pursuant to this agreement, the Contractor undertakes
not to design, construct or provide to the State of Israel anything
which infringes one or more
intellectual property rights, including patents, copyright,
trademarks or trade secrets, or which
infringes privacy or any other right of any person or entity.
1.4.2 If, in the course of performing
this agreement, the Contractor becomes aware of the
possibility of such an infringement, it shall immediately so
notify the Ministry's representative in writing.
1.4.3 The Contractor undertakes to indemnify
the State of Israel, its employees, representatives
and agents -
(a) for any infringement of the aforegoing
rights, whether merely alleged or actually proven;
(b) for any debt, liability or other
obligation deriving from the performance of this agreement
or relating to all or any of the site, as delivered to the
State of Israel pursuant to this agreement.
The indemnity shall include advocates' professional fees and
expenses, unless the Contractor
defends the allegations using reasonable legal counsel acceptable
to the State.
1.4.4 The provisions of this clause shall
continue in effect after the termination of this agreement.
1.5 Replacement Of Infringing
Works
1.5.1 If, in the course of designing,
constructing or maintaining the site, the Contractor
becomes aware that any of the works on the site infringes any
right contrary to the
provisions of this agreement, it shall not make use thereof
or immediately remove it from
the site, as the case may be, and agree with the State upon
the use of a lawful work or obtain
a licence for the lawful use of the work in accordance with
the terms of this agreement, all the
aforegoing at its sole expense and as agreed between the parties.
1.5.2 If, after receiving the site and
during the ___ years thereafter, the State becomes aware
that any of the works on the site, as delivered to the State
by the Contractor, infringes a right
contrary to the provisions of this agreement, the State may,
in its discretion, act as follows:
(a) require the Contractor to act as
provided in clause 1.5.1 above, mutatis mutandis;
(b) replace the infringing work with
a lawful work or obtain a licence lawfully to use the
work, and the Contractor shall indemnify the State for its
reasonable expenses furthe
r thereto.
1.5.3 The provisions of this clause shall
not derogate from any other power vested in the State
pursuant to this agreement or by law with regard to the use
of infringing works on the site contrary
to this agreement, including the right to compensation on account
of a breach of this agreement or
to an indemnity in accordance with the provisions of this agreement.
1.5.4 The provisions of this clause shall
continue in effect after the termination of this agreement.
Section 2 - Performance By The Contractor
And Its Employees
2.1 The Contractor shall not employ sub-contractors
in the performance of this agreement
and only it and its employees shall be authorised to perform
any work or do any act pursuant
to this agreement.
2.2 The Contractor shall have written
contracts of employment with its employees who are
engaged in the performance of this agreement, which shall secure
the Contractor's ability to
comply with the terms of this agreement and enable the Contractor
to assign or waive any
right pursuant to this agreement. For the avoidance of doubt,
the said agreements shall include
an express waiver of the emplo' moral rights, if any, in the
works which they create in the scope
of this agreement. Further, the said agreements shall also place
the employees under a duty to
safeguard the confidentiality of information belonging to the
State, which is to be kept confidential
pursuant to this agreement or by law.
2.3 For the performance of the Contractor's
obligation pursuant to this clause, it shall suffice
if each such employee reads this agreement and signs it in the
appropriate place, against his
legible name and the date of signature.
2.4 The Contractor's employees' obligations
pursuant to this clause shall continue in effect
even after the termination of this agreement or after the labour
relationship between the
Contractor and any of its employees comes to an end.
Section 3 - Warranties
3.1 Conflict Of Interest
The Contractor warrants that it has no
conflict of interest and does not envisage any conflict
of interest concerning the performance of this agreement. The
State of Israel acknowledges
that the Contractor engages in the design and construction of
other World Wide Web sites
for other customers and provided that such does not impair or
clash with the development
of the site pursuant to this agreement, such shall not be deemed
a breach of this clause.
3.2 Ownership
The Contractor warrants that -
(a) save as regards existing works, it is and
shall remain sole owner of all the works used
by it in the design and construction of the site pursuant to
this agreement;
(b) it has and shall retain full power and authority
to assign or waive rights in connection
with the works which constitute the site and the whole of the
site, as required pursuant to
this agreement, and to grant or assign licences to use existing
works, as obliged pursuant
to this agreement;
(c) none of the works constituting the site, other
than existing works, shall be published
in such a manner as to cause the loss of copyright in them;
(d) the site, together with all the works in it,
including existing works, does not and shall
not infringe any patent, copyright, trademark, trade secret
or any other intellectual property
right and shall not infringe any right of privacy or similar
right of any person or entity;
and that the Contractor is not aware of any claim which is pending
or threatened
against it or any third party in respect of such infringement
as aforesaid.
3.3 Implementation In Accordance With The Provisions
Of This Agreement And Repairs
3.3.1 The Contractor warrants and undertakes
that:
(a) the site, including its works,
will be designed and constructed to a high professional standard;
(b) the site, including its works,
will function properly with the usual browsers;
(c) the site, including its works,
will be designed and built in accordance with the provisions
of this agreement;
(d) the Contractor shall perform this
agreement subject to the provisions of law.
3.3.2 The Contractor shall remedy any
defect contrary to its aforegoing warranties and obligations:
(a) within four hours, if the defect
prevents the use of the site; other repairs shall be made
within 24 hours, excluding Sabbaths and public holidays;
(b) every repair shall be at the Contractor's
sole expense;
(c) the Contractor's warranty pursuant
to this clause shall extend for a period of ___ years from
the State's acceptance of the site;
(d) the Contractor's warranty for repairs
pursuant to this clause does not include links which
change over time, pages that become obsolete over time, content
that becomes outdated
over time or other changes that do not derive from a defect
in the Contractor's work;
(e) the provisions of this clause shall
continue in effect after the termination of this agreement.
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