Chapter 32
Webcasting: A Primer for Digital Communication
The promise of the Internet is that anyone can be a publisher. The ease of communication offers revolutionary facility in sharing one's thoughts and expressions, art and images, and sounds and speech. But with that promise comes the obligation to understand content rules.
Traditional publishers, from trade book distributors to movie studios, spend a significant portion of their assets to ensure that they comply with the legal requirements of copyright and trademark law, not to mention rights of publicity and privacy, trade secrets, and unfair competition. They have lawyers and business people who are savvy as to content rules and scrupulously follow these requirements, lest they become subject to a third-party claim of infringement. While errors occur in the content review process or someone makes the deliberate decision to take a chance, the formality of review is part of their publishing routine.
The same is not true for many of the Internet's untraditional publishers. In the early days of the Internet, those inexperienced in content rights and wrongs were blissfully (or naively) ignorant of what it means to violate someone's copyright or trademark. While the privacy of e-mail offers the illusion that no one other than a solo recipient is paying attention, the ability to forward or share a digital file can shatter that sense of intimacy. And when one sends e-mail to a seemingly limitless crowd of contemporaries or creates a website for anyone to access, then the webcaster knowingly is engaging in a broad distribution of material. Has the webcaster reviewed a proper checklist of content rules before engaging in that ultimate Internet experience, sharing works with the world? What follows is a webcasting primer for the content savvy and a virtual review of subjects covered in this book (Figure 32-1).
Domain Name
To establish yourself online, you need a domain name. The process has been greatly simplified in the past number of years. Just log on to www.register.com or a similar domain name registration site. You will be escorted through a process that can assure that the name you want is available in some form, whether it is www.NAME.com or. org, .net, .biz, .info, or whatever.
Trademark Check
The availability of the name is not the end of the story but just the beginning. Clearly, if you want to post family photographs on a website you wish to call www.kodak.info, you cannot assume that, because the site is available, you can lock it up without a second thought. A webcaster should do a trademark analysis of the availability of a domain name to ensure that it does not infringe another's trademark rights. Even someone without serious money to spend can take a few minutes and head to the PTO's official website, www.uspto.gov. Click through to the Trademark Office portion and go to a New User Search. Pop in the word or phrase and determine if anyone has already registered it with the PTO. If someone has, even if it is in a different line of commerce, that person or company may have a claim against your proposed use.
More formal legal searching is appropriate if the webcaster intends to invest significant money in the development of the site or if the site is related to a planned or existing business venture. In such cases, one needs a complete trademark analysis, covering federal and state registrations as well as common law uses. Then, too, for a website designed for serious business activities, a webcaster needs to take a close look at foreign markets. Trademark rights are geographically based, and, since the Web is an international medium of expression, a domain name based in the United States may run afoul of rights of someone elsewhere in the world.
Protect That Title with Federal Registration at the PTO
It bears repeating that, if the name selected is important to any long-range plan, consider registration of the trademark or service mark. This means filing an application with the PTO for exclusive rights to the phrase in connection with Internet services and any related business activities. The need for foreign registrations should also be evaluated.
Think about Other Trademark Uses
The domain name is only one of many trademarks a website owner typically uses. Scroll down through website pages and you will encounter many different words, phrases, images, and designs that bear trademark significance. Like sections of a newspaper or magazine, different identifiers can constitute trademarks if they are capable of signifying a source. Headings, subheadings, words, and phrases—each element should be assessed for trademark value and for potential trademark problems. Designs, art and shapes, even colors should also be scrutinized. It may not be feasible to assess the trademark status of every one of these; however, the most important and visible ones should not escape a thoughtful analysis.
Do a Content Audit
Of course, the inquiry does not stop there. Once you have a web address and some structure to the pages, think about the content you are placing on the Web. Initially, carefully determine what is being placed on the pages—text, graphics, photographs, charts, maps, clip art, sounds, videos, and links. Then, assess the use of the content by answering the relevant questions. Here is a handy sampling of the some of the more important issues to think about:
- Did you create the content or rely on someone else to make it?
- If it comes from someone else, is that person an employee or an independent contractor? Is there a written agreement covering the work created, and do the work-for-hire rules apply?
- Is the content taken directly from a third-party source? If so, does the content need to be cleared?
- If the content needs to be cleared, have sufficient permissions been obtained?
- Are any of the content uses covered by a limitation in copyright law? If so, which one, and have all the necessary conditions been met?
- Are any issues of publicity or privacy associated with the use? Is there a person whose name or image is being exploited? Is he or she a private person or someone famous?
- If a private person, is there any potential for placing the person in a false or embarrassing light?
- If a famous person, does the use exploit that fame without permission and for profit?
- Does the use affect any confidential information? Does someone's permission have to be obtained to disclose the information?
- Is there a potential misrepresentation in any statements made, particularly about another person?
Special Content Issues for Webcasting
After thinking about these various questions, certain special content issues should be considered.
Text
Assume that most of the text matter on the website is original. Still, some material may come from somewhere else. If the webcaster quotes or paraphrases another's work, the use of that material may be fair, but one cannot just assume that to be the case. A fair use analysis should be undertaken to ensure that the borrowed text is not so substantial that permission is needed. It helps if the borrowed text was created by someone working within the federal government, is a string of facts, or is so old as to qualify for the public domain. While those exceptions cover a large amount of source material, they still represent a very small fraction of potential text.
Graphics, Photographs, Charts, and Maps
What has made the World Wide Web the publishing center for digital works is the ease with which images can be transmitted. Every graphic, photograph, chart, or map adds color, texture, and interest to Internet communications. But the rules for using this material must be scrupulously adhered to, lest the user be exposed to potentially gigantic damage claims.
Remember, if a registered copyrighted work is infringed, statutory damages of $750–30,000 per work may be assessed, plus the legal costs of the prevailing party. If dozens of images are used, the claims multiply for each copyright.
Photographs have become a particular point of contention on the Internet because near perfect duplicates can be made from digital files. Unless the web-caster or an employee snapped the image, the photo should be considered covered by someone else's copyright and cleared accordingly. Unlike books or magazine articles, it is hard to take a “fair use” portion of a photograph. The entire work is usually published. Therefore, if the photo has not been cleared, a more complex fair use analysis must be relied on to justify the posting. Avoid the photo briar patch: Clear the images before you use them.
Clip Art
Clip art is deserving of a special word. Many software packages come with images for use on computers. Simply cut and paste the image into a text. It is fun and simple to do. However, use of most software packages is regulated by a detail license which the user agrees to by opening the software package (“shrink wrap license”) or checking “ACCEPT” if it is obtained directly online (“click license”). We talked about these licenses in Chapter 30. Most typically, clip art is packaged for private, noncommercial use. The terms of an individual license can vary, but it is necessary to read the license if you intend to post an image on the Internet. While an individual may use the clip art to make private calendars or school reports, when one publishes on the Web, a different audience is reached and different permissions may be required. The license may inform you how to secure the necessary permission to make broader public use of the works. Even so, many licenses, including some offered by Microsoft, simply warn you that additional clearance may be required but do not tell you where to get the consent quickly and easily.
Sounds and Music
Aside from graphics, the Web has popularized the use of digital sounds, voice, and music. The conversion of signals to streams of bits of data that a computer can interpret and communicate is a technological miracle of our age. To use sounds and music on a website is an ultimate Internet experience and a core benefit offered by the medium. However, if the sounds and music were uttered, composed, and recorded by someone else, then permission is needed to disseminate them from websites.
Of course, even before the transmission, this content must be preserved in a digital file on a server. This means it must be copied. That very act requires consent if the sounds and images are not original to the webcaster. The permission may be inherent in a limitation on copyright, but checking that out first is a necessity.
Digital conflicts already have many victims in the Internet webcasting battles. Prime among these is Napster, which offered a website to facilitate file sharing. Wildly popular but disdainful of copyright rules, Napster learned that even merely facilitating the transfer of music files on the Internet can violate content rights.
Since webcasting is a form of public performance, licenses must be obtained from the performing rights societies (ASCAP, BMI, and SESAC) if any of the songs in their repertoire is transmitted. All three societies have developed webcasting licenses, which can be downloaded and obtained from their websites. Any webcaster who uses music must obtain one or all of these licenses.
Equally necessary for use of digital sounds is a license from the recording company that pressed the original sound recording. Because finding the proper source of such a license and negotiating its terms can be a daunting task, Congress added a provision to the DMCA that establishes a compulsory license for sound recordings on the Internet.
In 2001, the fee for the compulsory license was the subject of an arbitration proceeding managed by the Copyright Office. In spring 2002, a CARP ruling proposed set fees for radio stations and other (nonbroadcaster) users of music. The CARP panel determined that a reasonable fee, on a per song per recipient basis, is 0.07¢(for broadcasters) and 0.14¢ (for nonbroadcasters). After mandatory review by the Librarian of Congress, the nonbroadcast rate was reduced to 0.07¢ as well. This translates into 7 cents for every webstreamed recording that reaches 100 people. For entities that hope to make their web fortune by playing music, these compulsory license fees add an expense—potentially a large expense—that affects the bottom line.
Videos
The ultimate application of the Internet is delivery of video content. Whether by download (transmitting movie files for storage on a recipient's home computer) or streaming (transmitting small portions of video files on a flowing basis, so that the entire video file is not available at any one time), having access to video content via the Internet makes the medium directly parallel to television (and perhaps directly competitive with it). With broadcast stations costing millions of dollars to build and license from the FCC, the potential for video transfer via the Internet is a unique, economical way for creative professionals to reach out to a broad audience.
Because the medium is so powerful and videos and film so valuable to traditional content owners, a webcaster needs to be particularly scrupulous in attending to content rights for video. The fights over music files already have video parallels in websites known by the phrases icravetv.com and scour.com. Webcasters that use video clips, not to mention full-length works, must carefully follow the content rules of the road.
There you have it: a webcasting primer designed to guide uses online. Webcasters must now think carefully about the content rights the law grants creators and the obligations it imposes on content users.