It is hard to imagine that only a decade ago, most of us wouldn't have known what the internet was, let alone how essential it would become in our daily lives. Today, if you are an artist, musician or filmmaker, the internet provides faster access to a greater audience than traditional distribution methods.
For example, with very little effort, you could create your own website to showcase your work. Alternatively, you could display your work on someone else's website. Before you do this, however, there are important issues you should consider before making your work available online.
Please be aware that the issues raised in this article are not intended to be exhaustive of all matters to be considered. As this is a complex area, Arts Law recommends that you seek legal advice about your particular situation.
General copyright considerations
1. What sorts of works are being made available?
The first step is to consider exactly what sort of works you are making available online. Are they made up of just text? Or are they musical works? Maybe artistic works? Or are they made up of a combination of things? For example, a film can be made up of music, lyrics, performances, artistic works and a script. All of these elements may be owned by different people. If some of the works aren't owned by you, you need to work out who owns copyright in them.
2. Do you have permission?
Once you figure out who owns what, the next step is getting permission from them to put the work online. You may already have some permission to use the work. For example if you are a producer of a film, you may have already obtained permission to perform the script, to film it, and to show it to an audience. However, that permission may not include a right to internet streaming. You need to go back and confirm that you have specific rights that allow for the work to be communicated online.
There are also some practical considerations. For example, is the work in digital format? Or, will you be converting it into digital format? You will need the copyright owner's permission before you can do this. You will also need to know what the appropriate format is (eg. jpeg, tiff, mpeg, etc).
Another important consideration often overlooked is whether, by making the work available online, you will be affecting any other prior agreements. For example, you may be the copyright owner in an artistic work, but you may have given someone else the exclusive right to use the image. By making the work available online, you might be affecting that person's right to use the image. Again, you need to go back and confirm where the rights lie.
Practical things to think about
1. Why are you doing this?
From a planning perspective, be clear about why it is that you are allowing the work to be made available online. Is it to increase your exposure? As a convenient marketing tool for your services? Maybe it is to sell your work?
This is important because it will give you an idea of the practical things you need to consider. For example, if you are doing this to sell your work, then issues like delivery to the customer, returns policy, method of payment etc should feature in your thinking process. This will assist you in finding the best website to upload your work.
2. Who are they?
Once you have determined why you are making your work online, you should shop around for the website that will enable you to achieve your goals.
You should consider how much you know about that website and that service provider – is it owned by a reputable person or organisation? Where is its registered office? What sorts of exposure can it promise you? How many hits does it register a month? Is the website easy to navigate though? How long does it take to download?
These types of questions will be important to determine how effective that website will be in achieving your goals.
3. What can they do for you?
Related to the above, is the consideration of what sorts of services you will get from being involved with that website. Relevant questions to ask include:
- If the work is not already in digital format, will they digitise it for you? Is there a charge for doing this? Who will pay for the cost of getting the work to them to digitise? And what about insurance while the work is being transported and digitised?
- Is there a charge for putting the work on their website? Is this charge reasonable for what they are doing for you?
- Exactly what will you allow them to do with the work? For how long? Will they have the exclusive right from you to do this?
- If you are providing the work on the website for sale, what are your obligations to the website owner? What obligations do they have to promote the work? Are there agreed prices? Whose responsibility is it to ensure that the work is delivered to the purchaser?
- Can they remove the work from their website at any time without consulting you? Will they be able to retain physical or digital copies of the work indefinitely?
- How do they deal with questions about their website content? Will they be dealing with questions about the work without consulting you?
- Does the website collect personal information about its users who view the works? How will that personal information be used? Will that information be provided to you?
- Will they include your personal contact details and other relevant information on the website?
- What links do they provide to/from other sites? Do they affect the perception of your work?
4. What will they do to keep the work safe?
The internet has its risks. However, those risks can be minimised and managed. You should know exactly how the website you have chosen will do this for you. For example:
- Do you know if they have a digital rights management policy? Have you read it? Are you satisfied with it?
- What sorts of technological protection measures do they have to actively control access like passwords?
- Does the website prominently list the manner in which users can make use of your works? For example, does the website have a click-through licence? Do you agree with the terms of this licence as it applies to your work?
- Is it standard practice for them to attach copyright notices on the works supplied on their website?
- What about other measures like digital watermarking or encryption?
- Do you have the right to indicate a preferred measure to protect the work?
- What is the website owner's practice in dealing with copyright infringement complaints? Do they have a procedure in place? What is that procedure? Do you think it is effective?
Lots to think about!
Making your work available online can be a great way to promote yourself and to sell your work. However, without considering the practicalities of the online environment, you may find that the surprises outweigh the benefits. It is a very good idea to gather all the relevant information and to seek legal advice before making your work available online.