17. July 2013–
Take a casual browse of the World Wide Web and you’ll probably notice that a number of websites look suspiciously similar. If you believe in the motto “you don’t have to reinvent the wheel” that probably doesn’t bother you – and that a site has a borrowed another’s navigational structure or colour palette doesn’t seem like a big deal.
But as a lawyer, I often get questions from programmers and web designers who want to know if their web pages are protected from copycats – especially when they’re spending a lot of time building more complex sites.
In Germany, when and what is protected is determined by copyright law, which examines the so-called “degree of originality” of a site. According to this rule, work is only protected if it has a certain degree of creativity. This means that if an individual creates a site that is considered to be sufficiently original it can be protected by copyright law. However, it’s a significant hurdle to get courts to recognise these cases.
New case, new ruling
For obvious reasons, the law can’t set any concrete guidelines for when and under what conditions copyright protection kicks in. The law has to be flexible to be able to cover different cases. Ultimately, in each individual case, the lawmakers have to decide whether the site is creative enough to be protected by the law.
An important part of this process is defining what the focuses of a site are – is it on the design and communication? Or on the design and creativity? If you take a look at the previous rulings passed for website copyright, the threshold websites have to pass is very high in order to enjoy copyright protection. Logically, this means that eCommerce sites that are constructed with a classic shopping cart system, for example, are only very rarely protected by copyright.
Rest assured, it’s illegal to copy your contents
In contrast to a site’s design, its contents – including texts, photos, graphics and data – quickly fall under copyright protection. A website’s terms and conditions can outline that it is protected as a platform for literary work, which means that, while from a legal perspective you’re allowed to be “inspired” by others’ design and layout, the same doesn’t apply to a site’s contents. If contents are copied without the owner’s consent, the copycat can face an injunction and will likely have to pay damages.
Programmers rejoice: Your code can also be protected
It’s not just the surface of a website that can enjoy copyright protection – the backend can also be protected. That means if a website identically repeats another website’s code it risks facing charges. For example, an individual HTML programme that also has SEO-optimised meta tags and is therefore highly individualised can also be protected as a “literary work”.
It’s a free-for-all when it comes to ideas
As surprising as it may seem, it’s important to note that copyright law doesn’t protect individual ideas but rather their implementation. Copyright law allows a web designer to be inspired by a non-copyright protected webpage. That doesn’t mean that you can exactly reproduce a website – legally, designers can be inspired by a website, combine it with their own idea and, purely via their own work, create a new web page.
What does this mean for you?
There’s no denying that the threshold websites must pass in order to receive copyright protection is extremely high – meaning standardised websites should assume they aren’t protected. Even when Facebook tried to take on German social network StudiVZ for copying its design, it didn’t enjoy any success in the courts. The action was dismissed as the design of Facebook was not considered to be particularly unique and because rebuilding individual functions doesn’t fall under copyright law.
That being said, I’d advise against directly copy-and-pasting graphics or lines of code from other websites. However, if you’re doing independent work to build a site, in most cases, you have nothing to fear from copyright infringement. Take heed though: If your employer notices that the web page you promised would be original and unique is actually a pure copy, they have the right to demand compensation.
Translated by Michelle Kuepper
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