Health start-ups: Don’t get snared in your own web – it’s your website, but do you own and control it?
Organisations rightly devote significant time and resources towards ensuring their web presence reflects their values and the message they wish to convey to the outside world. Even those that do not engage in e-commerce are expected to have a website – their shop-window in the electronic world – and will take steps to ensure that clients and prospective clients searching the internet will arrive at their own website rather than that of a competitor.
With the focus of this investment and effort being on finessing the website, it is easy to overlook two seemingly straightforward questions: (i) how much of your website do you actually own; and (ii) are you in a position to control it?
The answer to the first question is almost never clear cut. Having potentially paid a web-developer a not insignificant sum of money to develop a website for you, it would not be unreasonable to expect that the website and its content would be yours. If you made that explicit agreement with the web-developer then you may be most of the way there (but there are pitfalls so please read on). If you did not explicitly agree that you would own the content, then you are almost certainly not its owner.
The position at law – unless there is agreement to the contrary or the software code behind the website and content is created by your employee in the course of their duties – is that copyright in the website code and content will be owned by its creator and not by the person who commissioned/paid for it. You would of course be entitled to use the website for the purpose for which it was commissioned, but the default position is that legal ownership does not automatically transfer. The consequence of this is that the original creator is potentially at liberty to sell the same code or content to others, destroying the exclusivity that you may otherwise have considered was yours.
It goes without saying that you should always read the small print – web-developers will often have their own standard terms and conditions (which may deal with ownership of content) and those terms and conditions could become part of a contract when you place an order. Aside from ownership provisions, wording to watch out for includes: overly-complicated termination arrangements, automatic renewals, exit fees and being tied-in to support, hosting or other services. It is best to have the option to switch support or hosting providers (even if you never will) and ideally the service provider should be obliged to give reasonable assistance with handover to a new provider on exit.
Even if you are contracting on a service provider’s standard terms, it is worth ensuring that you specify in as much detail as possible and record in writing what you have asked the service provider to deliver. If the commission is discussed at a meeting or over a phone then it is worth following-up with an e-mail to the provider in order to capture a written record of what you are buying. This may prove useful in a later dispute as to your instructions or what services were included in your agreement – put it in an e-mail that ends with “if there any issues or corrections then please let me know right away”. Failing to do this can put you at a serious disadvantage: for example, in circumstances where the only written record is the service provider’s order form (which you later discussed by ‘phone, agreeing something different) or where there are no documents at all.
Of course, what happens ‘on the ground’ may not always reflect what is agreed in the contract – an unscrupulous provider might stop returning your calls and e-mails at the first hint of you moving your account elsewhere. Keeping copies of all your content and having log-in access that enables you to take control of the domain name could potentially save a lot of time and trouble if the relationship goes sour. If you have had a website developed from scratch without, for example, using an existing website ‘template’ that is freely available, then you should push for ownership of the bespoke code. If unsuccessful then you should consider whether the code should be placed in escrow with a third party agent (such as NCC) whereby you can access it if the supplier becomes insolvent or defaults on its contractual obligations. If you do end up in a dispute, then always be sure to keep copies of all e-mails, together with letter-correspondence and notes of all phone calls and seek legal advice early.
Even if you have contracted for ownership of the original content, website content will often include stock photographs and other media such as music and videos. These will often be licensed by a rights holder for a royalty payment rather than owned outright by the ‘buyer’. The royalty fee might depend upon the intended use of the content and any exclusivity arrangements. The licence terms – i.e. the basis upon which the content is made available – should always be respected. For example, if permission has been obtained to use a stock photo for leaflets or business cards, then it should not be used on a website without obtaining the requisite permission. Some rights holders use tools to monitor the internet, looking for instances of their content appearing on websites without a licence. This can lead to the threat of legal proceedings from the rights holders or a costly settlement. This may be particularly harsh on a business owner who has unknowingly been provided with infringing content by a web-developer or in the mistaken belief that the content was public domain or available on a royalty free basis. Some providers of content such as stock photos guarantee that they own and/or have the right to licence their content. This may be reflected in a higher royalty fee, but may give peace of mind and additional protection.
As with any commission, exercising due diligence and selecting a reputable provider may turn out to be more advantageous than simply selecting the provider with the lowest quote.
What about open source software? Open source software is becoming increasingly popular and many websites incorporate open source elements. There will often be a core suite of software that is made available free of charge together with a community of developers who contribute additional software on the same basis. It should be noted that ‘free of charge’ does not mean ‘free of copyright’ – there are usually conditions (i.e. licence terms) attached which may include stipulations about copyright messages, contribution of material back to the community and the terms upon which software incorporating open source elements can be provided to others. Advantages of the open source route may include not having to pay for the software itself (only for development work) and the developer being obliged by the open source licence terms to provide the source code to their client. This could enable you to take such software to another provider should you wish to.
The website domain name itself, also known as the web-address or URL, is distinct from the website content and is something that you may reasonably expect to own, but you may find your web developer registers it in their own name, particularly if they are providing hosting services. The registration and renewal arrangements for the domain name may even sit with a different provider than that hosting the website. Make sure you either own the domain name or know who does. Particular care should be taken around renewal dates and whether you or e.g. a web-developer is responsible for the renewal. Being late with payment could lead to your website going offline and also risks the domain name being sold to a third party. Securing the return of a domain name in those circumstances could prove costly or even impossible.
In addition to issues around ownership and licensing, there is the question of who actually controls your website. If all the content and access to the content management system are in the hands of the web-developer, then a business can find itself having to pay fees to that service provider every time the website needs updating. It may also prove difficult to move provider if all of the content is under the control of a third party. Worse still, if such a provider becomes insolvent or suffers a serious technical incident, it may be difficult or impossible to obtain a copy of the website in order to get it back up and running. Careful attention should therefore be given to issues around backups and access rights, as well as any minimum term provisions or exit payments.
This may all seem as though you are entering a legal minefield but, in summary, the key points to consider around ownership and control of your website include ensuring that:
- you keep copies of the terms of engagement for all services you commission, along with your instructions, your payment history and details of any disagreements;
- ownership of copyright in commissioned materials is transferred to you;
- the licensing terms for any third party content such as stock photographs cover their intended use;
- contract terms, including web-developer’s standard terms, are acceptable and do not unduly restrict your ability to change provider;
- if you do not have direct editorial access to the content, you have and maintain up-to-date backup copies of the whole site; and
- arrangements are in place for the renewal of domain name registrations and hosting fees.