Ownership of Content in Your Digital Life - World Wide Web (Part 2)

What Do You Own on Your Website?

In our previous article, we took a look at the content ownership agreements that exist between social media users and the companies behind Facebook, Instagram, and Twitter. In short, we learned that as part of the agreement to use their services, users agree to give these companies a transferable license to use any content uploaded to each social media platform. As well, the actions and behaviours of users were used to generate targeted profiling data to sell to marketing agencies.

People who may wish to share their experiences, stories, and ideas on the internet, but are hesitant to navigate the terms of service of each respective social media platform may choose to publish content on self-hosted websites (as was the case with personal blogs in the days before social media).

However, escaping the terms of service of social media sites still does not grant absolute rights of ownership to a website, as one still relies on the services of other companies to successfully publish and distribute their site over the internet. So what do you own and have copyright protection on when you decide to create your own website? Are your articles, photos, and website design safe from theft or unwanted appropriation? Let’s find out what elements of a website are owned by its creator.

A typical website can be categorized in three parts: the front end (browser), hosting, and database (back-end). Within these three parts, elements created by you, (such as content, stylesheets, and custom database structures), are mixed with infrastructural elements integral to a website’s structure, such as database software, CMS system, web server storage, and the DNS registration for a custom domain name. These elements are typically not owned by a website’s creator. Does the necessity of including these infrastructural elements affect the copyright of elements created by the site’s owner?

Domain Name – You Lease This

You paid a domain name registrar a sum to register a domain name, and set the nameserver to your webhost. Great job! Your site is now visible to the world! But do you own your domain name? The answer, surprisingly, is no! When you ‘buy’ a domain name, you purchase a license for the exclusive use of that domain name for a set period of time. In truth, no one person has the ultimate ‘ownership’ of your domain, as each domain name registrar pays ICANN to set up the relationship between you and your domain name. As your domain name expires, another person can register with another registrar to re-use the same domain name, and ICANN would re-assign the relationship to the new licensee.

Web Server Storage – You Lease This, Unless You Buy It

Your website has .html and .css files, photos, and videos you want to share. Great! But how do other people get to access it? First, you need to put your files on a publicly accessible web server, or a computer with an internet connection. You might be saying: “Hey, the computer I’m using has an internet connection,” and you’re right! Some people also have their own web server storage in the form of a dedicated computer or using their personal computer as a web server, but this option costs significant time and money to operate. More commonly, web site creators opt to lease web storage from a company to host their files – does this sound familiar? Again, we are faced with terms and conditions when we enter a relationship with a company to hold our data on their servers. To give an example, I host my personal website on Bluehost, so let’s take a look at what their terms say about my content. From section 6 in Bluehost’s User Agreement section of their terms:

“You hereby grant to Bluehost, to the extent necessary to provide the Services, a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute Subscriber Content and the Subscriber Website; and (ii) make archival or back-up copies of the Subscriber Content and the Subscriber Website. Except for the rights expressly granted above, Bluehost is not acquiring any right, title or interest in or to the Subscriber Content, all of which shall remain solely with you.”

It looks as though we have seen this before, right? The subtle difference between Bluehost’s terms of service and the terms we encountered on the social media platforms is that Bluehost does not include a clause about ‘transferability’, ‘royalty-free’, or ‘sub-licensable’ in their terms and conditions, which do not give it the right to transfer the license it has to other parties. If you are planning to lease web server storage, take a close look for those terms mentioned above. Otherwise, the license to use and display your content is generally required for the web server company to display your content when someone tries to access your website.

Hosted Content – You Should Own This

What of the content, the heart and soul, of a website? Surely you own the copyright for the photos and text you publish on your website. And you do! In the United States and Canada, both published (as in the case with a website) and unpublished works enter copyright protection from the moment that the author (you) creates it!

However, there can be a grey area when you hire someone else to create content. Depending on the contract and license for that content, you may have ownership of the content, a limited-use license, or a one-time use license for specific content such as photographs or logos. As a result, look for ‘work for hire’ clauses within these work contracts to ensure that the employer retains the copyright for the work produced.

Visual Design – You Should Own This

Great, now we have a website filled with the content we own on it! But how do we display the content in an aesthetically pleasing way? This is where website visual design and layout comes into play. Most websites are styled with cascading style sheet (CSS) to render elements in an organized way, known as the layout of the website.

But do you own this?

It depends on the level of originality demonstrated in the visual design of the website. A traditional website layout of a logo, top navigation, and single column content area does not meet the threshold of ‘original and distinctive’ work set out in Canadian copyright law.

“But I am worried that my awesome design will be taken or reverse engineered by others!”

And that is a fair point, because blatant cases of copying novel visual designs have occurred in the past. The best course of action to take if you are concerned with your layout is to register your visual design for copyright protection (this costs money). This way, you have evidence that you designed the layout of your website, and if it does not pass the originality test, the judge would not grant your application anyway.

Website Language – You Don’t Own This

You can use a multitude of programming and markup languages to code your website, including HTML, PHP, Java, Python, Ruby on Rails, and Javascript, to name a few. While you do not own the language, the code you write is protected by copyright law, as long as it passes the threshold of original creativity, which includes the use of “skills and judgement” in your work. As a result, you cannot copyright a singular web element such as a tag, but you are able to copyright a specific function you authored yourself.

Content Management System – You Lease This

Another important element of a website that interacts directly with your content is the content management system (or CMS) of a website. For larger websites that publishes content frequently, users may opt to use a CMS to manage and simplify the publication process by pre-defining templates for certain content types. Some popular CMS options include WordPress, Drupal, Joomla, and many more, which operate under the GNU General Public License (GPL).

The GPL is a free, copyleft license for software that allows licensees to run, use, and modify the software in any way they wish, so long as:

the GPL license is extended to all derivative works
source code of all derivative works is also provided to the users of the derivative works
the freedom of distribution is also given to users of the derivative software

Copyleft, as defined by the GPL, is a way to ensure the freedom of software. They say: “Instead of putting GNU software in the public domain, we “copyleft” it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.”

Interestingly, GNU allows for the sale of derivative works, and you see this happening in cases like WordPress plugins, which operate under the GNU license, but are sold for a fee. The spirit of the license is to ensure that software remains modifiable for any use, but does not impose that works must be also shared for free as well.

While this may sounds great, what does this have to do with my content? In the GNU’s license agreement, it states that for derivative works:

“You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it.”

Does ‘as a whole’ mean that if I used CMS software that uses the GNU license on my website, my website becomes a ‘derivative work’, and I have to provide anyone who asks (with a license) to use my content? No! The GNU license only covers the software that it applies to, so in the case of WordPress, you do not have to provide licenses to anybody, so long as you do not intend to re-distribute WordPress.

However, WordPress (owned by a company called Automattic), has its own terms of use, which includes a very familiar clause about licensing your content for public display in the first section:

By submitting Content to Automattic for inclusion on your website, you grant Automattic a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing, and promoting your blog.

A point to note is that like Bluehost, and unlike the terms of the social media platforms we covered earlier, WordPress does not include a clause about the transfer of this license to other third parties.

Database Software –You Lease This

Ok, now we dive into the murky, technical bits of the backend of a website. Your website has some content that is managed by templates on a content management system, but how does this CMS store and retrieve stuff from your web server storage? That is where relational database management systems come in, and as you may have guessed, these systems come with their own terms and conditions that users agree with.

Some popular database options include MySQL Community, Oracle, Microsoft SQL, and Apache Derby. These systems are installed onto your web server and typically do not transfer your data to their parent organizations, but instead processes your data within your web server directly.

Taking MySQL as an example, let’s take a look at the relationship between database software companies and your data. Similar to WordPress, MySQL Community Edition is distributed under the GPL, and does not require you to distribute licenses to your website unless you plan on distributing a modified version of MySQL. In truth, even if you did intend on distributing a modified version of MySQL, and you used that modified version on your website, you will still only need to distribute a license for MySQL, the database software portion of the website, but not for any of your content, as that modified version constitutes the “as a whole” portion of the GPL license.

However, for other database systems that require a transfer of data between servers, such as database as a service or other cloud database services, you should read carefully into the license agreements regarding what happens to your data after it is copied to another server for processing.

Database Data – You Own This

Generally speaking, the data that you author and input into your database, such as the content of a WordPress post, or an image, belongs to you even when it is stored in a hard disk owned by your web host, managed in a database system owned by Oracle and processed by a content management system owned by Automattic.

However, one should always be careful about the licensing permissions that are granted when entering into a relationship with any company that interacts with your digital identity or data. As mentioned above, most of the traditional database software do not need a clause about a license for your data as the systems are installed within your web server, and typically do not require a license to ‘publicly perform’ or re-display your data elsewhere. As well, be careful of agreements that allow other parties to transfer the license they have to provide the service they offer to you to other entities.

Conclusion

So in total, a website creator has ownership to some elements in his or her website, namely the content, metadata, and visual design of a website, and other custom authored pieces of code. However, creators do not have to worry about complicating the ownership of the elements they authored with licensing agreements of the elements they lease if they choose to use open or free software licenses. The best way to make sure that your content is safe is to double check the terms and conditions of any infrastructure that requires access and use of your data.

Disclaimer: The views and opinions expressed in this article are those of the author and do not constitute legal or financial advice.
Always do your own research for informed decisions.