Dear Colleagues,
At the risk of restarting the interesting debate on the above that took
place just after the New Year, I felt I should make some comment as Frank
Norman and Brian Kelly kindly suggested we the JISC Legal Information
Service, (http://www.jisc.ac.uk/legal and [log in to unmask]) might
be able to comment on the issue of 'misrepresentation'.
At this point I would normally have a very long disclaimer, but since I'm
not going to attempt to answer in detail this or any of the other legal
issues raised, I will spare the list and just note that I am not a lawyer
and cannot give professional legal advice. Institutions (or individuals)
should seek professional advice if their individual case demands it.
On the plus side, my colleague John Kelly, is currently preparing a piece
for our website on 'Cybercrime', which may help. We are committed to
revising the existing piece on IPR and perhaps a section on 'cybersquatting'
and related misdemeanours should go here also. Comment welcome.
My colleagues know more than me on this area but for what it is worth, it
seems to me, a number of legal issues were raised by the recent postings.
(But I may be wrong ... corrections welcome). There have been very few UK
test cases and some of the few that have occurred, such as the Shetland
Times case some years ago, were settled out of court.
1. Copyright infringement where text or images or other 'content' has been
copied, used etc., without permission. Adapting such material (assuming
you/your institution owns the copyright in the first place) may also
infringe as might 'distribution/publishing'. I think putting something on an
infringers website might count as the latter and even the former ... but
don't quote me. I'm not sure, in this case, that word for word retyping or
similar by the person in question would avoid a claim of infringement.
2. Framing parts of your website is more difficult, but in the USA there
have been cases that suggest ,where the viewer might be mislead into
thinking the framed content is still part of the original website and not in
fact another website entirely that they have been directed to, could be
misrepresentation or 'passing off'. Possibly an offence under UK law too. I
would hazard a guess that if, the text implies this person is speaking on
behalf of an institution when clearly he/she isn't, it would lay him/her
open to some kind of legal action.
Again it has also been argued, Framing is adapting the original and
therefore infringes on these counts also.
Simple links are more difficult. It is often courteous to ask permission
but provided there is no suggestion of misrepresentation or passing off, nor
encouragement to others to copy or break the law, then it might be difficult
legally to take any action on copyright grounds, although there may be other
laws to be considered.
Moral Rights might be considered but I am unsure how the courts might
act on a claim the 'Integrity Right', for example, of the 'author/designer'
were being infringed by an incoming link.
Having said that, some years a go on this list someone in an HEI
received a lawyers letter asking them to remove a link to a certain
organisations website/page and replace it with one to the home page or
remove it all together, i.e. not to 'deep-link'. The legal advice (from
memory) was that on balance it was best to comply.
I'm not sure if 'wrong' or misleading links due to the site
owner/designers incompetence could be a cause for action, it might, but it
would depend on the case.
3, The domain-name. It could be argued that the domain name in question or
similar has been registered in bad faith or will lead persons on the
'wherever omnibus' to be confused as to the organisation whose site they are
looking at. There are a range of issues here and avenues of action. There
have been a significant number of cases around the world where organisations
have endeavoured to obtain domain names registered by individuals or other
entities which they felt were in bad faith or confused the public. Some have
been successful but equally some have not.
4. Where an FE/HE organisation has registered a logo, trade mark or similar,
then the laws regarding them too might be invoked.
5. It has been suggested that the 'design' the look and feel of a website is
protected by copyright or even design right. Thus any copying of its
features might give cause for legal action.
6. There is also 'database right' and copyright as applied to databases if
you have them on/accessible from your website to consider. It has also been
argued a website is per se a database.
6. Jurisdiction is a problem. If this person in this case is not a UK
resident and /or the site is registered outside the UK, which law will apply
and in which jurisdiction would any case be heard? ... I need more time to
even think about this. Also the courts in one country may take a different
attitude to another. A site at 'universityofX_is_rubbish.com' might be
regarded as within 'freedom of speech', legitimate criticism, .... etc.
What actions can be taken? Some, most perhaps, have been mentioned in
earlier postings.
1. Do nothing ... in the short term it may save money and hassle but in the
longer term might not do your organisations image any good. It might even
loose you potential students/staff ...
2. Register all known combinations of domain name ... expensive and you may
well miss one.
3. Buy names from cybersquatters if you can afford it ... Its not for me to
comment but it might encourage them. ...
4. Send a polite communication asking the person to remove all reference to
your organisation, or at least all infringing material and to get their
references right.
5. Send (perhaps via your lawyers which may make more of an impression) a
'cease and desist' letter. Should not cost that much I believe.
6. Contact the ISP and assuming the person is breaking their terms of use,
their site could be removed, although as noted it might crop up elsewhere.
7. Contact the relevant domain name authority, check the name was reistered
properly. If yes and it is not within the their powers to act, consider the
ICANN Dispute Resolution Process .... might be expensive. I will try and
find out the costs. The process has also come under criticism in some
quarter's as being not always 'balanced'.
8. Take professional legal advice and pursue the individual in the relevant
courts/jurisdiction. Again, likely to be expensive. Depends on how much you
feel you are loosing and how much it affects your reputation.
I may have missed other possibilities ... I guess allot comes down to the
individual case and organisation in question and how much they are affected,
as to what action is appropriate.
It is possible (and I will try and check this) that organisations such as
UUK, UCISA etc are/have considered joint action in these areas. This might
be more efficient. If there was a central reporting point for all FE/HE and
some, if limited resources to act, it might save the sector some money,
rather than each organisation having to act as and when. On the other hand
institutions value their independence ...
I have not talked about technical/security measures that are/may become
possible to protect your material on your own site at least. That's another
issue.
Hope this posting is of some use while more cogent material is prepared for
the LIS website.
Best Wishes
Ralph
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Ralph Weedon
Project Director
JISC Legal Information Service
University of Strathclyde
Level 3, Centre for Educational Systems
Alexander Turnbull Building
155 George Street, Glasgow G1 1RD
Scotland
tel: 0141-548-4939
fax: 0141-548-4216
email: [log in to unmask]
web: http://www.jisc.ac.uk/legal
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This material or information has been prepared by the JISC Legal Information
Service for informational purposes only and does not, nor are they intended
to be, legal advice.
This information is not intended to constitute, a contract for legal advice
or establishment
of a solicitor-client relationship.
Professional Legal Advice is strongly suggested.
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