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Copyright Question

Expert: Ron Clark

Phillip asked:

I'm considering starting a home based Internet business. I feel that my idea for the type of web site is very good. I'm wondering if I can license or patent my idea to protect it from being duplicated?

Ron Clark answered:

"Thanks for the question. The protection of intellectual property is a complicated area of the law, but there are some basic steps you can take to protect ideas for your website from being duplicated.

Trademarks, patents and copyrights are all forms of intellectual property. A copyright in a work gives the owner the sole right to reproduce the work or to publish the work. While copyright does not protect ideas, it protects the author's expression of an idea as embodied in a "work", which may be a website. A patent is protection for an invention. A trademark is a word, design or slogan that distinguishes goods or services. A trademark may include the name of the website.

Where a work is original and certain other requirements are met, copyright arises automatically. Nevertheless, copyrights can be registered and there are advantages to doing this. Registration raises presumptions that copyright exists in a work and that the registered owner is the owner of the copyright.

A trademark must be registered to have legal effect. There are strict requirements for determining whether a trademark can be registered. It must be distinctive and be able to differentiate the products or services of the owner. A registered trademark gives the trademark owner the right to use and protect the trademark throughout Canada. A trademark is an asset that can be licensed to third parties. Prior to filing an application for registration of trademark, the owner should conduct a search to determine if the trademark is available.

Sometimes, a "domain name" of a web site can be registered as a trademark. A domain name is the address linking computers to the Internet. Domain names can end in ".com", ".org" or, ".ca" or other suffixes. The relevant central registry must be contacted for a website owner to be granted the right to use a domain name with a given ending. To protect your domain name, you will need to not only register it with the appropriate authority but also ensure that it does not infringe the rights of a person or corporation that has a similar name or trademark. Even in the case of a similar domain name or trade-mark, each user may have a legitimate claim to the name if there is little risk of confusion, for example, if one party is a business and the other is an individual using his or her own name.

Many would be surprised to learn that creating a "hyperlink" to a website raises legal issues. Conflicts may arise where one party creates a link from its page to a target site and the link is not authorized by the owner of the target site. As a practical matter, most website owners are grateful to receive more "hits". "Framing" is even riskier. The frame function allows a linking site to display portion of a target site as a framed page within the linking site. Framing alters the appearance of target sites page but not its contents. Framing does not terminate the connection to the linking site before displaying the target site page. You may want to ensure that the owner at the target site does not object to pages on the site being hyperlinked or framed by your site.

"Meta tags" are information contained in the source code of a web site document designed to be machine-readable by search engines. The information is not seen by the Internet user unless the user views the source code of the page. Websites include meta tags as key word summaries to allow the websites to be found more easily. Disputes can arise were the website owner uses another persons trademark in a meta tag.

You should include in your web site a "legal page" containing the terms of use of your website. This may help protect you against being sued in another jurisdiction, being subject to foreign law, unauthorized use of material and other surprises. Take a look at the article on CanadaOne called Don't Get Caught in the Web: Legal Protection in Cyberspace .

As you can see, provided you don't infringe anybody else's intellectual property rights, certain rights arise with any original work. However, you may want to take additional steps to protect original names and marks and the content of your website.

Good luck with your Internet business."

About the author

Ron Clark, is a lawyer with Minden Gross Grafstein and Greenstein, Barristers and Solicitors. Ron's practice focuses on corporate and commercial transactions, including mergers and acquisitions, corporate finance, secured transactions and e-commerce.

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