Can you replicate online content for your own business?

If you find content online that you would like to use yourself, whether that be images or text, you need to be careful when replicating this, and should not assume you can do this freely.

If you have paid (via a one-off payment or a subscription service) to access particular content, then you should assume that the content provider would not be comfortable with you replicating any of the paid-for content for use with other third parties without their consent.

What copyright or other intellectual property issues could arise?

Even if the content is available for free on a website, copyright will most likely subsist in all written and visual aspects (as they will constitute ‘literary’ or ‘artistic’ works). Replicating a substantial part of this without consent would constitute copyright infringement. ‘Substantial’ can mean quantitatively, or potentially also in a qualitative sense if it is a small but key part of the content. Further, the website owner may have registered design rights in relation to particular visual aspects of the websites such as parts of the graphical user interface, and may claim you are infringing these.

Names or logos that appear on the website may have been registered as trade marks. Using the same or similar trade marks in your own online content or other materials, to sell similar products or services, could constitute trade mark infringement. Even if the website owner’s names or logos are not registered, if you include them, or replicate the same ‘look and feel’, the website owner might bring a claim that you are ‘passing off’ your own business products or services as originating from the third-party website owner.

These concerns all relate to reproducing the exact wording or appearance of the website content, rather than the underlying concepts or ideas. If you reproduced the same idea with different visuals or words (and using your own software coding rather than copying the original website coding), and do not use trade marks the same as or similar to the website owner’s, you could probably avoid infringing the rights described above. However, if you want to replicate a particularly technical idea, then this may be the subject of patent protection. Implementing that idea yourself, or enabling your customers to do so, could constitute patent infringement.

To avoid these issues, it is best to avoid copying website content. Most websites will have terms and conditions of use, usually included in the footer of each page, that you can click on to check. Typically, these will prohibit further replication or publication without the owner’s consent. If they allow some limited rights to reproduce some/all of the content, they will be set out here. For example, it may be allowed if you acknowledge the original copyright owner. If not permitted, you could contact the owner to explore the possibility of paying a licence fee to do so.

This is part of the concern with current artificial intelligence (AI) cases going through the courts. AI will sweep the internet for relevant content to feed into its learning model, without acknowledging the rights of copyright owners or the website terms and conditions. Creators and content owners argue that either the act of sweeping, or the production of an artistic, literary or musical work that is very similar to their own original works, constitutes a reproduction of their content and should not be done without their express permission. This position has not yet been fully clarified by case law, and legislation is evolving in different territories.

If you have questions or concerns about copyright issues, please contact Jon Moorhouse.