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2.2.8. Websites, homepages, webpages and co.

In order to be able to answer the question of whether a web presence is protected by copyright, you definitely first need to know what is being talked about. A website usually refers to an interactive website with its own domain.

The start page of a website is the homepage; it appears when you enter the domain. A website has different webpages and documents, and can be explored and used over a uniform navigation system (e.g. www.ccdigitallaw.ch). A website has its own uniform resource locator (URL), which allows it to be directly located in the Internet (e.g. http://ccdigitallaw.ch/resources) and can consist of several elements such as texts, images, music, films, and hyperlinks.

A website can enjoy copyright protection as a collected work (Art. 4 CopA) when it shows itself to be individual with regard to the choice and arrangement of the webpages that it contains; in this way, it is granted copyright protection. For this reason, it is also likely that websites enjoy copyright protection as long as the contents of the website fulfil the conditions of Art. 2 para. 1 CopA, i.e. it is an intellectual creation with an individual character.

TO CONSIDER

The Internet is not a legal vacuum – warnings

When you are designing websites, it is really tempting just to take what you want in terms of image, sound material, etc. from the Internet. You should be careful as the Internet is not a legal vacuum. Just because photographs and music can be simply and easily found and used on the Internet, it does not mean that they are not protected by copyright. It is always advisable to assume that such things are protected by copyright when you are not one hundred per cent sure that an image or a piece of music is protected by copyright.The use of protected works on the Internet has given rise to an actual line of business in its own right, cease and desist letters from lawyers. A particularly large number of German legal firms have specialised in combing through the Internet for possible infringements of copyright uses of photographs and other works. Pursuant to the German Copyright Act (Art. 97a UrhG), everyone who is infringed by an unlawful use of a work should “warn” the transgressor before they initiate legal proceedings for an injunction. With this warning, the injured party demands that the transgressor desist from the copyright infringement and pay a particular sum as reparation for the efforts of the lawyer. An increasing number of people in Switzerland are receiving such warnings from German lawyers. And although the Swiss Copyright Act does not recognise the formal warning like the German Copyright Act, more and more Swiss lawyers are resorting to warnings in the form of requesting the alleged transgressor to stop using the work and to pay a sum of money as compensation for the damages which occurred. You should take warnings seriously; however, it is usually worth taking advice from a lawyer or engaging a lawyer before you react to the warnings and corresponding requests.

GOOD TO KNOW

Linking to third-party contents – infringement of copyright?

It is impossible to imagine the Internet without hyperlinks. However, from a copyright perspective, you link to third-party content and this quickly raises the question of whether you can infringe the copyrights of another person as a result, in particular whether you are making third-party content unlawfully available in the process.

In the case of links, a distinction must be made between visible links and those which cannot be recognised as such. Visible links include surface links, which link to the start page of a website, and deep links, which link to a subpage (a website, webpage) of a website. The person who sets such a link reveals that they are pointing out third-party content or the user of such a link realises that they will be directed to another website or webpage by linking to the afore-mentioned third-party content. From a copyright perspective, a surface or a deep link does not usually constitute an infringement.The situation is more complicated when there is “embedding”, i.e. a link does not clearly link to a third-party website or a webpage, but rather the content which is being linked to is perceived to be part of the start page. This can involve inline links (as well as embedded links), which link to particular information on a third-party webpage that appears on the user’s screen as though it is integrated into the start page. In addition, there is framing, which involves the division of the webpage into several windows (frames), in which different websites or webpages are shown, both one’s own and also third-party sites and pages. The third-party content can thus be directly perceived by the user without them also having to leave the start page. More simply, it gives the impression that the embedded content belongs to the original website. There is no information regarding the third-party website. This is comparable with quoting without giving a source (Art. 25 CopA) or plagiarism, and probably infringes the copyrights of the owner of rights of the embedded web content. However, the issue has not yet been conclusively settled in Switzerland.

FAQ

2.2.8-1 I have received a warning from a lawyer because I used a photograph on my homepage. What can I do?

Take the warning seriously. However, do not sign any declarations to cease without further explanation, or pay any contractual penalty or agree to a settlement. Check firstly whether the accusation of an infringement of copyright is even legitimate. In each case, it is a good idea to seek legal advice.

2.2.8-2 May I embed a third-party YouTube video in my own website or in a social network so that a “framing” link is placed (i.e. which not only results in a reference to the YouTube page but also causes the video to appear as a whole)?

The question has not yet been conclusively settled in Switzerland. Therefore, you first need to assume that a “third-party link” is unlawful without the consent of the author or the owner of rights. In the EU, on the other hand, this is permitted under particular conditions (ECJ, Judgement dated 21.10.2014, C-348/13). Here it is argued that a YouTube user (holder of the copyright) usually uploads their video to YouTube with the intention of making the film freely available to the public domain. When a third party then makes this YouTube film available on another website or in a social network, it can literally be viewed by a wider public. However, if and insofar as this work is freely available on YouTube, it must be assumed that the owner of the copyright has considered the likelihood of it being replayed for all Internet users as the public.