Legal Issues: Spotlight
Comply With Copyright Laws
When Building Your Web Site
Q. Can I use information from other organizations' web sites on my web site or in my publications?
A. The short answer is yes, only if you get permission to do so.
Technology has simplified access to and the dissemination of information among individuals and organizations. Examples include:
- Listserv subscribers exchanging published articles;
- Organizations supplementing their web pages with content from other sites;
- An employer including regional hiring data, which was compiled by a professional association, on its web site;
- A career center expanding its data base of job postings by linking to an employer's web site or placing an employer's actual job posting on its site; and
- An individual using e-mail addresses from an online directory to send notices of products, services, publications, or career fairs to individuals listed in the directory.
While the Internet provides people with a wealth of information at the click of a mouse, this access doesn't come without responsibility, including compliance with copyright laws, proper use of proprietary information, and adherence to web site owners' terms and conditions regarding use of their information.
Copyright and Trademark
Copyright law protects authors and/or publishers from the use or copying of their work by anyone else without their prior permission. A copyright exists in any "original" artistic or literary work that is fixed in a "tangible medium of expression." "Original" does not mean novel, creative, or even good; it means that material was developed and formulated by an individual who did not copy it from someone else. A work is fixed in a tangible medium even if it exists only in an electronic format.
Internet subscribers often assume that everything on the web is "in the public domain." Works in the public domain are strictly limited to government documents and other items for which authors have clearly relinquished their copyright. A web site, other than a government site, offering material (text, data, graphics, and photographs) for the public to read does not put the material in the public domain. Thus, the use or copying of this information requires prior permission from the author, publisher, and/or web site owner.
"Copying" includes photocopying material, attaching it to an e-mail or distributing it to a listserv, and placing it on one's own web site. Some recent court cases have held that linking and framing articles are forms of copying that require permission.
Moreover, the Supreme Court held in the case of New York Times Co. v. Tasini that permission by an author (or publisher) is not carte blanche to use the article in any format. Permission to copy or use an article, regardless of its format, is limited to the purposes for which the original permission was given. For example, if you receive permission to use an article for a staff/student workshop, this permission does not authorize you to place the article on your web site; e-mail it to your entire class, organization, or listserv; or place it in any other publication that you produce. Separate permission is needed for those uses.
The "fair use" doctrine permits the reproduction of copyrighted works without permission for certain limited purposes. But there are grave misconceptions regarding fair use, which is a very narrow exception to the copyright protections. Attorneys who investigate copyright violations report being told that "I downloaded this information because I was doing training on this subject for students or employees," or "My listserv was discussing this topic and I knew that this article would be relevant to the discussion." Such comments indicate a belief that as long as the individual is not selling information from a web page, it is fair use to distribute it free to others-on paper or electronically-for an educational purpose. However, using an article for educational purposes does not justify or provide a defense for unauthorized copying.
There are four factors that the court considers in determining
fair use. They are:
- The purpose and character of the use. Purpose and character pertain to how a work has been changed transformed when it is posted on a web site or published in another format, and how it is being used, e.g., educationally or commercially. Using text verbatim or charging fees for or obtaining revenues from the use of the copied material weighs against a finding of fair use. The more a work is changed, indicating that the work is being used for research or commentary, the more likely a finding of fair use.
- The nature of the copyrighted work. The more creative the work, the more protection the work will be accorded. Conversely, the more informational or functional the work, the broader the scope of the fair use defense. There are instances in which content includes both factual and expressive elements, such as an article on job-search strategies. In these situations, the more creative the article, the more likely it will be protected.
- The amount and substantiality of the work used in relation to the copyrighted work as a whole. How much was copied in relation to the entire article or work? Even single articles that are part of a newspaper or magazine have the same protection as individual works, e.g. books. Therefore, copying an entire article weighs against a finding of fair use.
- The effect of the use upon the potential market for or value of the copyrighted work. Fair use, when properly applied, is limited to copying that does not materially devalue the original work. This includes the immediate financial effect and whether unrestricted or widespread use would cause the article to be devalued. If copying fulfills the demand for the original work and diminishes or prejudices the value of it, this is enough to justify a finding against fair use.
Web site owners typically place a copyright notice at the bottom of their web pages advising individuals that they must seek permission before copying or downloading any information. Making copies of such material without permission is a violation of the web sites' copyright. For example, copyright notices appear after much of the information provided on NACE's web sites. This means that while the information is being made readily available for use by NACE members and/or the public, NACE still retains the copyright to the information. Anyone who wants to copy the information and share it with others in their office or on a listserv must obtain NACE's permission before doing so. (See NACE's Reprint Permission Policy.)
The same restrictions on copying or using information from a web site hold true for logos and trademarks. U.S. trademark law permits individuals who sell goods and services to protect any words, phrases, symbols, or designs that identify or distinguish their goods and services from others' products. No one else can use them to identify similar goods and services. (Photographs also are protected by copyright law.)
Many organizations do not want their names or logos to appear on web sites that are not their own, even if the use is "innocent." They do not want to give the impression that they are endorsing the other sites. "Borrowing" the logo or a trademark to use as a hyperlink also is restricted unless permission is obtained first. One final note on trademark: An important distinction between copyright and trademark law is that trademark law does not provide a fair use exception.
Personal Data, Proprietary Information, And User Agreements
Many web sites provide information that may not fall within copyright protection, yet it is still the property of the web site owners. Examples of such information include salary data, survey results, benchmarking information, job postings, and the like. Another example worth noting is user information. Many users voluntarily provide personal data to web sites because they want to be notified when interesting information is added to the sites or they want to network with other individuals. At the same time, they do not want their personal information (such as e-mail address, postal address, telephone number, fax number) to be used for solicitation purposes, placed in another data base, or distributed on a listserv.
To ensure the proper use of this information, web sites are publishing terms and conditions that users must agree to before they can use the sites. These rules prohibit users from distributing information on the sites, via copying, linking, or framing, without the express permission of the site owners. Web sites that have directories of names and addresses typically prohibit the use of these directories as "electronic mailing lists" for purposes of group notification or solicitation of a product, service, or event. Users who do not agree to the terms or fail to adhere to the rules may be barred from the sites.
In some cases, web sites are not that formal in publishing copyright notices or asking individuals to accept their terms and conditions. The fact remains that the information on these web sites is the property of the site owners. Web site owners want people to use the information on their pages for personal, noncommercial purposes. The owner grants a "license" to users to read and even make a printout of the information.
However, distributing the information to others via e-mail, making multiple printed copies, or placing the information on another web site would amount to the unauthorized use of proprietary information. For example, an employer that posts job openings on its web site is inviting individuals to review the openings and apply for them. This does not authorize career center or commercial web sites to post the opening or create a link to it. Even framing could be a problem because it builds a border around the employer's web page to make it appear as if the information is owned by another site.
Before using information from another web site, consider the following:
- Was consent given to copy, link, frame, and/or post the information in an e-mail or on a web site?
- What portion of the article, information, or data was downloaded-all or only a part of it?
- Was attribution given to the author/owner/publisher?
- How widely was the information disseminated-to three people in the office or to a listserv of 1,000? Was it posted on your web site?
- Is the information used in a program or service for which fees are charged or revenues are generated?
- What impact will dissemination have on the market value of the information?
- Is your use of the information in compliance with the terms and conditions of the web site?
- If this was your web site information, would you want others to use or distribute it freely, without your permission?
The bottom line is: If you want to share information—of any kind, on any subject—that you have not personally created, get permission from the authors and/or publishers before you copy the information in any format.
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Note: You can find out about NACE's Reprint
Permission Policy online.
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Journal of Career Planning & Employment, Spring 2002
