If a business creates a Web site or has an employee create one, the business immediately has ownership of the copyright. But if a vendor creates the site, the business must ensure that it owns the copyright in the work of others.
The easiest way to protect your Web site is a simple written agreement covering the parties' rights and obligations, stating the creator's compensation and schedule for completion and acceptance of the Web site, and assigning worldwide intellectual property rights, including copyright, to you. Otherwise, the business may end up with only a license to use the copyrighted material, leaving the vendor free to resell the work.
A business must also be careful that its site content does not violate someone else's copyright. If the content is copyrighted by another, the business must determine whether its use of the work is fair use. For example, criticism, comment, news reporting, teaching, scholarship or research is, within certain limitations, deemed fair use.
There is no hard and fast rule for determining fair use, but there are four tests to make the evaluation.
* Will the use be commercial, which is more likely to be held an infringement than, for example, a nonprofit, educational use?
* How much creativity does the work embody? Facts and ideas cannot be protected by copyright. The copyright protects a tangible expression of the work. Generating a telephone directory may take substantial time, but it is not considered a great creative effort.
* How much of the copyrighted work is used? This involves both qualitative and quantitative expression. A tobacco company once used a single sentence from a doctoral thesis in an advertising campaign, which was deemed to be copyright infringement, not fair use.
* How much will the use damage the copyright owner? For example, reproducing someone's unpublished market research could do great damage, while posting part of a 10-year-old newspaper article likely would not.
Even if a business has permission to reproduce copyrighted material in hard copy, such as in a newsletter, it may not be able to put the material on its Web site unless its agreement with the creator says so. Arnold B. Silverman is a lawyer with Eckert Seamans Cherin & Mellott. Reach him at (412) 566-6000.
Turning down the heat
The EPA modifies the Clean Air Act's Risk Management Program in hopes of cooling the regulatory burden of explosives and flammable materials.
By Richard S. Wiedman and Arnold B. Silverman
The U.S. Environmental Protection Agency recently revised the Clean Air Act's Risk Management Program to reduce unnecessary regulation for companies that use explosives and flammable materials.
The EPA removed a number of chemicals from a list of substances that subject companies to the Risk Management Program. Most of the substances removed were explosives, flammable substances in gasoline that are used as fuel, and flammable substances that occur naturally in hydrocarbon mixtures prior to initial processing. The EPA deleted these substances from the list because the Department of Transportation already regulates them.
The Risk Management Program also excludes substances in transit. These program changes will benefit those companies that transport or use these substances in their production facilities.
EPA to owners of buried storage tanks: Don't forget the December 1998 deadline
The clock is ticking toward the Dec. 22, 1998, the deadline for owners and operators of underground storage tanks to upgrade, replace or properly close their tanks.
According to the Environmental Protection Agency, tanks installed before Dec. 22, 1988, may not protect against corrosion, spills and overfills. Leaks in these tanks can release potentially hazardous chemicals into the soil and groundwater.
The EPA has already announced that there will be no extensions for the deadline since companies have known about the 1998 deadline for years and, according to EPA officials, it would not be fair to those who have already followed the rules and fixed their tanks.
The EPA offers booklets to provide more information on the requirements: "Don't Wait Until 1998" and "Financing Underground Storage Tank Work: Federal and State Assistance Programs." To order the booklets, call the EPA hotline at (800) 424-9346.
Unfair competition, trademarks and hidden codes
Companies may not be aware that their trade names or trademarks may be contained in hidden codes on the World Wide Web and may be causing them harm.
When a Website is created, there is more to the site than the graphics and text that appear on the screen. There also are other pieces of code called "meta tags" which are invisible yet readable by Web browsers.
They are composed of key words that may describe the site or the business. For example, some of the key words that would be part of a meta tag for Small Business News would be small, business, news, publication and Pittsburgh.
Search engines such as Yahoo! and Alta Vista scan meta tags to find matches to the key words that search-engine users submit when looking for particular information. The more "hits" a meta tag provides (often done by repeating words in the meta tag), the more likely that search engines will put that site toward the top of their list of results from a search.
A current case in federal court will soon provide some answers to the questions about the use of another company's name in meta tags. In Oppedahl & Larson vs. Advanced Concepts, Oppedahl is suing Advanced Concepts for adding "Oppedahl" and "Larson" into the meta tag of Advanced Concept's Website.
Oppedahl is a law firm, and Advanced Concepts creates Websites. When employees at Oppedahl used search engines and typed in key words "Oppedahl" and "Larson," Advanced Concepts' Website would appear on the list of Websites, usually before the law firm's own site. Oppedahl could not figure out why until it went to the site and discovered the multiple listings of its name in the site's meta tag (done by using the View pull-down menu and clicking on Source.
Oppedahl is suing Advanced Concepts claiming that (a) Advanced Concepts has no right to use Oppedahl's name in its meta tag, and (b) it intentionally used the words to draw users to its own site first, before going to the plaintiff's site, thus causing harm to Oppedahl.
Although no ruling has yet been made in the case, prudent companies should avoid improper use of other's company names and trademarks on their Websites and in meta tags. It also is wise for companies to be aware of instances in which their names and trademarks appear in other Websites by searching for their names and trademarks on the major search engines.
Legal Affairs is compiled by attorneys of Eckert Seamans Cherin & Mellott LLC, a national law firm based in Pittsburgh.
You’ve taken the time and spent the money to invent a product or technology, and now you’ve got to protect it. But getting a patent will prove daunting, to say the least. Here’s how to find help:
1. Give up the idea of doing it yourself. The law has arcane provisions that can trip up an amateur. You can also benefit from an attorney’s outside viewpoint.
2. Gather information about patent attorneys. Good sources include law firms, local bar associations, legal directories such as the Martindale-Hubbell Law Directory, the Internet, the United States Patent and Trademark Office and telephone directories.
3. Evaluate attorneys. Ask detailed questions about scientific and legal education and experience. Make sure the attorney has been admitted to practice before the U.S. Patent and Trademark Office.
4. Ask prospective attorneys to preview the patent process. In going through the process, look for a patentability search before preparing a patent application; advice on licensing; availability of foreign patent protection; and time involved in each phase of the process.
5. Ask about fees. It is entirely appropriate to discuss fees and other costs before hiring an attorney and explore ways that costs can be minimized.
6. Feel comfortable with the attorney. Obtaining a patent is a team effort, and you and the attorney should have similar work styles and expectations.
7. Ask for references, which may include clients, attorneys and others with direct knowledge of the individual’s skills.
8. Request examples of work product, including examples of issued patents, that are publicly available. Confidentiality may limit how much the attorney may reveal.
9. Get it in writing. In some states, the attorney must write an “engagement letter” specifying the scope of the work, fees, special payment arrangements and other terms of the attorney-client relationship. In all cases, it’s a good idea.
10. Tailor your search to the situation. Your invention or plan may involve unique circumstances. Keep them in mind when evaluating patent attorneys.
The inventor or business owner who searches diligently and asks the right questions can find the right attorney, not only in seeking the patent, but in all aspects of protecting his or her inventions and other intellectual property.
Arnold B. Silverman is an attorney with Pittsburgh-based law firm Eckert, Seamans, Cherin & Mellott.