Can terms of use make reading a website, taking notes and re-using the knowledge gained for a commercial purpose an infringement of copyright?

At the outset, it should be understood that the information available in a website, be it content, images, software, or the information as such is subject to number of laws. Most websites convey the restrictions in the use of the website information through the website terms and conditions. In general, the terms and conditions may cover the laws of copyright, passing off, trademark and even the law of contract. Also, most organisations draft the terms and conditions in such a manner that any commercial use of the content or information in the website is restricted in every manner possible.

The basic rule of Copyright is that it protects the expression of ideas and not the ideas as such. It is thus the content that is available in a website (e.g. the text, images, etc) that is copyright and not the information as such. Therefore, a simple reading of a website and the use of the knowledge gained in the course of commercial activity would not count as exploiting of information for commercial purposes under copyright law. But, it could be treated as exploitation for commercial purposes or a breach under other laws.

For example, the website owner can bring an action under passing off if the information taken from the website (e.g. a ‘title’ or ‘name’ that establishes the goodwill of the company) is used to create a substantially similar content (a title or name confusingly similar to the former so that ones goods are passed off as that of the former).

The copyright owner could also bring an action for infringement of his moral right where there is a false attribution or derogatory treatment of the work incorporated in the website. For example, if the website contained a story and the central character of the story is taken and used in another work, the copyright owner could bring an action for an infringement of his moral right.

Although not actionable under law, the use of the information could be treated as plagiarism.

Given that the scope of copyright would cover only the textual content in the website and not the information as such, the company could bring an action under other laws, say passing off should there be a breach. Thus, the terms and conditions made available in a website could be wide enough to cover not just the use or exploitation of content in a physical way (copying or republishing) but much more than that.

Posted on 28/02/2011

Posted in: FAQ, Copyright/IPR
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