Two legal items caught my eye this week, and reinforce the care needed when building web sites.
The first is a copyright infringement case heard in the Patents Small Claims Court, which provides a 'low cost' route to justice in intellectual property cases in the UK. In this case (Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012]) a charity web site had included some photographs illustrating types of drug. The web designers and their client believed that the photographs belonged to the UK government (and they had been used on a government drug information site) and as a result could be used on this web site. Unfortunately this was not the case as they were copyright of a long-established photojournalist named David Hoffman and no permission had been given for their use in this way.
The photographer successfully took action for copyright infringement against the charity who published the web site and the judge calculated and awarded damages. The judgement is clearly set out and makes useful and interesting reading.
In the book we recommend that you don't necessarily believe it when your client says that assets are cleared for their web site. You are probably aware that most contracts that involve clearance of assets include some kind of indemnity and that this, in turn, should be covered by professional indemnity insurance. I should add that if whoever had used Mr Hoffman's photos originally had included correct rights metadata with the image this whole show could have been avoided. So that's another good reason for making sure images on your web sites have appropriate metadata.
A few days ago the RNIB initiated legal action against the bmibaby airline over accessibility (or lack thereof) on their web site. Apparently this has been ongoing for some time and the impression I get is that the RNIB felt the airline had been given enough time to fix the accessibility issues but there had been no progress.
I suspect many of us thought that accessibility was no longer the problem it was a few years ago and that the basic techniques were now common practice. In any event, with more and more web sites using content management systems the feeling would be that the CMS would do the heavy lifting on accessibility as it does on other things. Clearly we, and our clients, should not get complacent.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Saturday, 4 February 2012
Tuesday, 8 November 2011
A decade of dot-UK domain disputes
Domain names are now so much a part of an organisation's branding that it comes as something of a surprise that it's only ten years since the UK domain manager, Nominet, introduced a process for handling disputes over domain names.
Without such a process, issues over a name would fall back on somewhat costly legal areas, such as passing off or trade mark legislation. The dispute process is the equivalent of mediation or the small claims court in many ways, and cheaper access to justice ... for the accused as well as the accuser ... is always a good idea.
All the good short names may have gone - ATSF's short domain is a testament to the age of our domain rather than any fancy footwork on our part - but more and more people want domain names. We looked at the opening up of the domain name system back in July, and choosing and registering a domain name is still a common part of web build. It's worth reading the BBC web site's story on Nominet's resolution process over the last ten years. Some of the examples are well known: but did you know that a Ryanair 'hate site' lost its domain because it made just a few hundred pounds from ads, and, that a married couple called Starker and Bucknell ran into problems when a relative ran their surnames together in a domain name (think of a chain of coffee outlets)?
There's also more on domain name disputes at the ever-useful Out-Law.com site.
Without such a process, issues over a name would fall back on somewhat costly legal areas, such as passing off or trade mark legislation. The dispute process is the equivalent of mediation or the small claims court in many ways, and cheaper access to justice ... for the accused as well as the accuser ... is always a good idea.
All the good short names may have gone - ATSF's short domain is a testament to the age of our domain rather than any fancy footwork on our part - but more and more people want domain names. We looked at the opening up of the domain name system back in July, and choosing and registering a domain name is still a common part of web build. It's worth reading the BBC web site's story on Nominet's resolution process over the last ten years. Some of the examples are well known: but did you know that a Ryanair 'hate site' lost its domain because it made just a few hundred pounds from ads, and, that a married couple called Starker and Bucknell ran into problems when a relative ran their surnames together in a domain name (think of a chain of coffee outlets)?
There's also more on domain name disputes at the ever-useful Out-Law.com site.
Friday, 21 October 2011
Website content clearance issues
We've all had the client who delays giving us their content for their web pages, mobile pages etc, and faced the knock-on effects of this on development. We have warned against this and recommend that you make it clear upfront that the client has certain responsibilities in project development; such as providing the content when indicated and taking responsibility for ensuring they have the right clearance to use the content electronically worldwide. Actually those both relate to legal issues of ownership and rights in material - very contentious issues at the moment.
The BBC Technology news covers a story around these issues, Websites should carry libel risk for anonymous posts 20th October 2011. You see, although you might well try to advise your clients' on their use of content prior to development, any social websites where the content is generated on-the-fly by users is beyond such control. Usually, unless the web site owner (who is legally the publisher) monitors and removes contentious postings themselves - reactive monitoring - they will respond when someone else points the material out to then. This is known as 'notice and take-down'. There hasn't been any difference between posts by people who give their name and anonymous or pseudonymous ones ... not until now!
A joint parliamentary committee has come out against anonymous postings that breach defamatory rights of individuals. This ruling extends the responsibilities of the website to posting complaints next to an identified offender with take-down rights upon application of a court order. If the offender is not identifiable - has used a pseudonym - the website can take these down immediately unless the author agrees to be identified. There are more details in the article, but, this means more editorial onus on website maintainers.
If any user of social websites posts illegal material - and illegal can mean a range of issues other than rights infringement, who is responsible? For copyright infringement and libel it is generally the 'publisher' (as well as the person who posts the material). It's worth noting that a web hosting company or the postal and telephone services are not seen to be the publishers of content that flows through their channels.
The guys who have been sentenced for inciting public disorder during the UK August riots when they posted Facebook pages urging people to riot, have had their lengthy sentences upheld by the court of appeal recently. See 18th October news article by Owen Bowcott. In this case it was the poster who was responsible, not the 'publishers' like Twitter and Facebook, however, the use of social media and Blackberry messaging came under scrutiny as a result of the unrest. So watch this space.
More responsibilities equal more time and more cost – so just remember that for your next project where you'll be involved in monitoring any content provided on-the-fly!
Our iMedia responsibilities get more and more each day as the law catches up with technological advances.
The BBC Technology news covers a story around these issues, Websites should carry libel risk for anonymous posts 20th October 2011. You see, although you might well try to advise your clients' on their use of content prior to development, any social websites where the content is generated on-the-fly by users is beyond such control. Usually, unless the web site owner (who is legally the publisher) monitors and removes contentious postings themselves - reactive monitoring - they will respond when someone else points the material out to then. This is known as 'notice and take-down'. There hasn't been any difference between posts by people who give their name and anonymous or pseudonymous ones ... not until now!
A joint parliamentary committee has come out against anonymous postings that breach defamatory rights of individuals. This ruling extends the responsibilities of the website to posting complaints next to an identified offender with take-down rights upon application of a court order. If the offender is not identifiable - has used a pseudonym - the website can take these down immediately unless the author agrees to be identified. There are more details in the article, but, this means more editorial onus on website maintainers.
If any user of social websites posts illegal material - and illegal can mean a range of issues other than rights infringement, who is responsible? For copyright infringement and libel it is generally the 'publisher' (as well as the person who posts the material). It's worth noting that a web hosting company or the postal and telephone services are not seen to be the publishers of content that flows through their channels.
The guys who have been sentenced for inciting public disorder during the UK August riots when they posted Facebook pages urging people to riot, have had their lengthy sentences upheld by the court of appeal recently. See 18th October news article by Owen Bowcott. In this case it was the poster who was responsible, not the 'publishers' like Twitter and Facebook, however, the use of social media and Blackberry messaging came under scrutiny as a result of the unrest. So watch this space.
More responsibilities equal more time and more cost – so just remember that for your next project where you'll be involved in monitoring any content provided on-the-fly!
Our iMedia responsibilities get more and more each day as the law catches up with technological advances.
Thursday, 29 September 2011
The changing world of 'Know your customer'
Knowing your customers used to be a marketing issue. The more you know and understand what your customers want the better you serve them, the happier they are and the more likely you get return business. In our iMedia sense we may need to apply this from two angles – understanding our clients, and understanding their customer base. You might, for example, indicate in the scoping phase of the project, that you can – for a cost – get market intelligence on their customer base to aid targeting them more effectively interactively. They may have this intelligence already and offer it to you if you ask. You would perhaps have needed the first set of information on your client prior to this when you were winning the project. (There are many companies that offer to find intelligence on customers such as Onesource)
But things have got more complex, of course. Now the waters are muddied by the Know your customer (KYC) legislation that has been out in place for anti-money laundering initiatives. You may need to consider this angle when implementing any project in the financial services sector. See the pwc article April 2011, for more on this.
But let's get back to the marketing sense of know your customer. This is good business sense and the basics are covered in a Business Link Guide.
Knowing your clients goes hand-in-hand with knowing your competition, since if they are offering more services for the same or less money, it is easy to see why your clients might migrate to them, especially in the present stringent financial climate. You'd better be sure of your own reputation/branding if you want to counter any client's comparison with cheaper services being offered, or take the hit. Again, the basics are outlined by Business Link.
So, do you know your clients' business well enough to define their needs? Do you know their customer bases well enough to proffer goods and services to them in a way that is visible to your clients? Do you keep an eye on your competitors so you are in tune with your own sector and what it is offering at what cost?
All these are necessary and yes, I know there are so many other things taking up your time too.
But things have got more complex, of course. Now the waters are muddied by the Know your customer (KYC) legislation that has been out in place for anti-money laundering initiatives. You may need to consider this angle when implementing any project in the financial services sector. See the pwc article April 2011, for more on this.
But let's get back to the marketing sense of know your customer. This is good business sense and the basics are covered in a Business Link Guide.
Knowing your clients goes hand-in-hand with knowing your competition, since if they are offering more services for the same or less money, it is easy to see why your clients might migrate to them, especially in the present stringent financial climate. You'd better be sure of your own reputation/branding if you want to counter any client's comparison with cheaper services being offered, or take the hit. Again, the basics are outlined by Business Link.
So, do you know your clients' business well enough to define their needs? Do you know their customer bases well enough to proffer goods and services to them in a way that is visible to your clients? Do you keep an eye on your competitors so you are in tune with your own sector and what it is offering at what cost?
All these are necessary and yes, I know there are so many other things taking up your time too.
Monday, 8 August 2011
Government buys into copyright 'update'
Last week the government response to the Hargreaves report on copyright was published. It seems that they have accepted the report pretty well lock stock and barrel, which may at least save the report from the black hole the Gowers report seemingly fell into. It will also suit many in the interactive industry, who wrote an open letter to the powers that be urging acceptance and then welcoming it.
There is much common sense in the recommendations. Format shifting is something 'we all' end up doing and I have always thought it a bit ingenuous of rights owners in granting a licence that only allows intangible use of something while tying it to a physical artefact such as a CD. There is a circle to square over making this work in a European framework that asks for reasonable remuneration for rights holders in such cases (such as a blank tape levy). A right of parody possibly seems better than it actually is; the existing French right includes a requirement to be funny, which must be an interesting thing to argue in court. Data mining (by which I think they really mean indexing) should be OK as long as you can't reverse-engineer the original from the bits that you mine.
No, the 'were they listening at all?' moment comes over orphan works. In principle, the idea of being able legally to publish a work where you really can't find out who owns it or can't track them down to pay them makes sense. The difficulty is that it could open a hole big enough for unscrupulous or ignorant publishers to drive a bendy-bus through, and that was what really worried the photographers. A compromise solution was to agree to non-commercial use of orphans (whatever 'non-commercial' means exactly), but even this has been ignored. I can't see a compelling case for orphans licensing outside of the heritage sector. If you're the British Library or the BBC and you have an item in a box with no label on it that clearly has an historic relevance to your project then I can be persuaded. Using an orphan photograph of a polar bear instead of getting one from a library is not what such legislation means at all.
Two things could ameliorate this: better treatment of moral rights of authors/photographers (particularly as manifested by metadata attached to photographs on the web) and a better way for an aggrieved photographer to take action. Sadly, Hargreaves had no brief to consider moral rights, so that battle is still on-going. En passant I note that the moral dimension is perhaps more a subject for the Culture minister, Jeremy Hunt, than Business minister Vince Cable. The watchword is that copyright is the means by which culture does business, and it should be a two-way street.
There is an unexpected bit of good news in the government's response. It's on page 12:
There is much common sense in the recommendations. Format shifting is something 'we all' end up doing and I have always thought it a bit ingenuous of rights owners in granting a licence that only allows intangible use of something while tying it to a physical artefact such as a CD. There is a circle to square over making this work in a European framework that asks for reasonable remuneration for rights holders in such cases (such as a blank tape levy). A right of parody possibly seems better than it actually is; the existing French right includes a requirement to be funny, which must be an interesting thing to argue in court. Data mining (by which I think they really mean indexing) should be OK as long as you can't reverse-engineer the original from the bits that you mine.
No, the 'were they listening at all?' moment comes over orphan works. In principle, the idea of being able legally to publish a work where you really can't find out who owns it or can't track them down to pay them makes sense. The difficulty is that it could open a hole big enough for unscrupulous or ignorant publishers to drive a bendy-bus through, and that was what really worried the photographers. A compromise solution was to agree to non-commercial use of orphans (whatever 'non-commercial' means exactly), but even this has been ignored. I can't see a compelling case for orphans licensing outside of the heritage sector. If you're the British Library or the BBC and you have an item in a box with no label on it that clearly has an historic relevance to your project then I can be persuaded. Using an orphan photograph of a polar bear instead of getting one from a library is not what such legislation means at all.
Two things could ameliorate this: better treatment of moral rights of authors/photographers (particularly as manifested by metadata attached to photographs on the web) and a better way for an aggrieved photographer to take action. Sadly, Hargreaves had no brief to consider moral rights, so that battle is still on-going. En passant I note that the moral dimension is perhaps more a subject for the Culture minister, Jeremy Hunt, than Business minister Vince Cable. The watchword is that copyright is the means by which culture does business, and it should be a two-way street.
There is an unexpected bit of good news in the government's response. It's on page 12:
The Government will, subject to establishing the value for money case, introduce a small claims track in the Patents County Court [which deals with all kinds of intellectual property, not just patents] for cases with £5000 or less at issue, initially at a low level of resource to gauge demand, making greater provision if it is needed.This is something I and others have been banging on about for a while: for small (ie SME) creators, the fees you get for an individual publication of your work are relatively small and so a court for such small claims is overdue.
Friday, 20 May 2011
Copyright back on the political agenda
I have written in the past about some of the currently contentious issues in intellectual property, such as orphan works and the use of metadata to preserve a creator's moral rights.
Recently there have been two calls for public input into the copyright process. One was a call for evidence by the Culture select committee, which has been put on hold for the moment, and the other was the Hargreaves Report.
Hargreaves had been touted as the 'Google Report' since it was suggested that one of its issues, changes to our copyright exceptions (called fair dealing) to match the American fair use model, had been somehow suggested to the Prime Minister by Google, by saying that our rights regime prevented the Googles of this world from starting here in the UK. Rory Cellan-Jones at the BBC put that very point to Google's Eric Schmidt, who admitted that getting a business underway in the USA was easier than in Europe but said he was "not aware" of Google saying this was a rights problem.
Elsewhere in Rory's BBC blog, and that of Arts colleague Will Gompertz there were postings on Hargreaves. What I recommend you do is read the comments, for the Battle of Waterloo will these days be won on the playing fields of blog comments. I have chipped in (and bit my tongue on several occasions) but ... within the severe size limits currently imposed by the BBC on such things ... the comments expose a lot of the obsessions and occasional ignorance of what is a very arcane area of law and very difficult for people to understand.
Apart from the fair use and orphan works bits in Hargreaves ... and a welcome call for format shifting and parody exceptions, one theme is of what I might dare call an improvement in fairness and openness in rights dealings. The Intellectual Property Office is urged to give examples of what you can and can't do, which would have some force of law, and the government is encouraged to make it more practical, and cost-effective, for small rights owners who have been infringed to gain redress.
One omission is that moral rights don't get a look-in. There will be areas of the creative industries, including the small corner where I shine my light, that will find that a serious flaw.
Oh, and the report (PDF here) also asks that it doesn't suffer the fate of some previous such reports and that the government acts on its recommendations. It looks as if copyright is back on the agenda.
Recently there have been two calls for public input into the copyright process. One was a call for evidence by the Culture select committee, which has been put on hold for the moment, and the other was the Hargreaves Report.
Hargreaves had been touted as the 'Google Report' since it was suggested that one of its issues, changes to our copyright exceptions (called fair dealing) to match the American fair use model, had been somehow suggested to the Prime Minister by Google, by saying that our rights regime prevented the Googles of this world from starting here in the UK. Rory Cellan-Jones at the BBC put that very point to Google's Eric Schmidt, who admitted that getting a business underway in the USA was easier than in Europe but said he was "not aware" of Google saying this was a rights problem.
Elsewhere in Rory's BBC blog, and that of Arts colleague Will Gompertz there were postings on Hargreaves. What I recommend you do is read the comments, for the Battle of Waterloo will these days be won on the playing fields of blog comments. I have chipped in (and bit my tongue on several occasions) but ... within the severe size limits currently imposed by the BBC on such things ... the comments expose a lot of the obsessions and occasional ignorance of what is a very arcane area of law and very difficult for people to understand.
Apart from the fair use and orphan works bits in Hargreaves ... and a welcome call for format shifting and parody exceptions, one theme is of what I might dare call an improvement in fairness and openness in rights dealings. The Intellectual Property Office is urged to give examples of what you can and can't do, which would have some force of law, and the government is encouraged to make it more practical, and cost-effective, for small rights owners who have been infringed to gain redress.
One omission is that moral rights don't get a look-in. There will be areas of the creative industries, including the small corner where I shine my light, that will find that a serious flaw.
Oh, and the report (PDF here) also asks that it doesn't suffer the fate of some previous such reports and that the government acts on its recommendations. It looks as if copyright is back on the agenda.
Saturday, 14 May 2011
Cookies ... half-baked or crumbling?
The Information Commissioner's Office has been busy with not one but two brand new documents for us to look over.
The first is a Data Sharing Code of Practice.
Those of us who handle data related to web sites are most likely to be doing this on behalf of a client (which makes us data processors rather than data controllers) although for our internal business purposed we will probably have some data that needs to be carefully handled in a controlling capacity, even if it is only personnel records.
However, even as data processors we have responsibilities, and you should make sure that the person responsible for your data looks over this code of practice.
In some ways that's the easy one. The other is yet another piece of legislation about cookies.
Just when we thought we'd covered ourselves for using cookies by explaining opt-outs and making sure we really needed to use them, those nice people at the European Commission are tightening the rules and the ICO has provided some guidelines.
Whereas clause 6(2) used to say we needed to advise the user about how we used cookies and told them how to opt out, now the clause says we have to advise the user about how we use cookies and get their consent.
There are exceptions for repeated visits (It looks to me that you only need to ask the first time) and for'strictly necessary' for a service requested by the user, which the ICO suggest is things like shopping carts. A user can also set global consent levels in a browser to signify consent.
Now I know you can set such things in a browser at the moment (no cookies, cookies only from the web site I'm visiting, any cookie) but the web site can't interrogate this. I'm sure the major browser manufacturers will have this sorted in time (sarchasm alert). Would a consent in sign-up terms and conditions be enough? What do you do about systems which already have signed-up users?
Oh ... and we have until May 26th to sort this out.
The first is a Data Sharing Code of Practice.
Those of us who handle data related to web sites are most likely to be doing this on behalf of a client (which makes us data processors rather than data controllers) although for our internal business purposed we will probably have some data that needs to be carefully handled in a controlling capacity, even if it is only personnel records.
However, even as data processors we have responsibilities, and you should make sure that the person responsible for your data looks over this code of practice.
In some ways that's the easy one. The other is yet another piece of legislation about cookies.
Just when we thought we'd covered ourselves for using cookies by explaining opt-outs and making sure we really needed to use them, those nice people at the European Commission are tightening the rules and the ICO has provided some guidelines.
Whereas clause 6(2) used to say we needed to advise the user about how we used cookies and told them how to opt out, now the clause says we have to advise the user about how we use cookies and get their consent.
There are exceptions for repeated visits (It looks to me that you only need to ask the first time) and for'strictly necessary' for a service requested by the user, which the ICO suggest is things like shopping carts. A user can also set global consent levels in a browser to signify consent.
Now I know you can set such things in a browser at the moment (no cookies, cookies only from the web site I'm visiting, any cookie) but the web site can't interrogate this. I'm sure the major browser manufacturers will have this sorted in time (sarchasm alert). Would a consent in sign-up terms and conditions be enough? What do you do about systems which already have signed-up users?
Oh ... and we have until May 26th to sort this out.
Friday, 23 July 2010
Learning from CoJo
CoJo is the snappy handle for the BBC's on line College of Journalism, part of the wider BBC Academy. Presumably this material is developed for the BBC's in-house staff training but it is also openly available (or some of it is) via the BBC web site. Another aspect of public service broadcasting.
One part of this I have been exploring recently is the law section, particularly things to do with copyright, contempt and defamation (things that apply online as much as on air). These are part of the Law section.
I took the tests on defamation, contempt and copyright. I didn't do too badly (some issues over the wording of questions but sometimes me not knowing as much as I thought I did) but it made me think about a subject I think (!) I know a little about ... so very worth while. This is one to bookmark and come back to.
Don't forget that any web site is a publication whether it's a carefully thought out web page or a comment on a blog or forum. So you too (and your clients) can be a publisher, with all the legal responsibility that brings.
The BBC site also led me to an interesting blog by teacher and blogger Paul Bradshaw. Start with his law for bloggers and journalists and explore.
One part of this I have been exploring recently is the law section, particularly things to do with copyright, contempt and defamation (things that apply online as much as on air). These are part of the Law section.
I took the tests on defamation, contempt and copyright. I didn't do too badly (some issues over the wording of questions but sometimes me not knowing as much as I thought I did) but it made me think about a subject I think (!) I know a little about ... so very worth while. This is one to bookmark and come back to.
Don't forget that any web site is a publication whether it's a carefully thought out web page or a comment on a blog or forum. So you too (and your clients) can be a publisher, with all the legal responsibility that brings.
The BBC site also led me to an interesting blog by teacher and blogger Paul Bradshaw. Start with his law for bloggers and journalists and explore.
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