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Legal Eagle

Licensing

Q: Licences for websites

Do I need a Performing Right Society licence and any legal disclaimers for an entertainment website and should a contract be issued to the designer to protect my ideas?

A: Much depends on what you want to put on your website, of which you have provided no details. If it includes background music, downloading or streaming music, then you will need an online music licence from PRS which covers the performers' rights and you will also need a licence from the relevant record company for the particular use of their existing recording on your website. This latter is likely to be centrally controlled in the future by a licence from the Phonographic Performance Limited, who are at present in negotiations with the record companies to handle their online music rights. If you need to make a copy of the music in order to use it on your website - e.g. for use by your hosting company - then you will also need a mechanical rights licence from the Mechanical Copyright Protection Society. But note that the PRS and MCPS now operate as separate divisions of an alliance between them - the Music Alliance.

If the entertainment on the website includes visual excerpts from performances of films, plays or variety acts, or other copyright material such as photographs, then you will also need to obtain the consent of the relevant copyright owners of same. Publication of such material on a website will be an act protected by copyright. This is unless the purpose is for review or criticism or unless what is being published comprises simply information about the contents of or about individuals involved in performances of particular works which you have put together and collated and disseminated on the website in your own way. Such a database may well have a commercial value. Remember that copyright subsists in an original literary, dramatic, musical or artistic work and sound recordings and films from the time of creation until, broadly speaking, 70 years from the death of its original creator.

The layout, format and design of a website requires a considerable degree of creative, technical and design skill and is a work protected by copyright. Consequently, when commissioning the creation of one, it is highly desirable to obtain a formal assignment of copyright from the designer. Failing this, you may have nothing more than a licence, express or implied, to use the website. Said licence, unless otherwise agreed, may be non-exclusive, in which case you may find others, possibly competitors, using the same or similar designs to your detriment. You should also endeavour to obtain a moral rights waiver from the designer in case you wish to make any changes to the site without his consent in circumstances where he might complain that such changes damage his reputation. The contract should also deal with other matters such as specification issues, the quality of the design, testing, hosting, timescale, fees and payment terms, and one would expect any assignment of copyright to be conditional upon prior payment of the design fee. You should also be careful that your designer is not tempted to place well-known entertainment brand trade marks on your website, hidden away in its metatags (search engine's indexing text). This may enable your site to leap up to search engine tables but it is likely to be trade mark infringement.

Once the website is up and running, it is desirable to have onscreen terms of use, including disclaimers, to deal with matters such as copyright protection, liability for misuse and Data Protection Act compliance. If the owner intends to collect personal data from visitors to the website, he will also need a full data protection policy statement and possibly consent to use the data (e.g. for direct marketing). Such terms of use will vary from case to case, depending on the circumstances and in view of the importance of a website and its potential worldwide availability, it is desirable to seek specialist legal advice regarding the detail of such terms.

First published June 2002