Copyright on web site design

[Sunnyside]

I have built a number of web sites on a design & host platform. The T&Cs of the host states the following:

If you provide any Content to us in connection with the Services you grant to us for the duration of the Service a worldwide, irrevocable, royalty free, transferable, sub-licensable, non-exclusive licence to use such Content for the purposes of:
a. Providing the Services to you;
b. Displaying Content in whole or in part by any means, and across any media whether now known or invented after the Effective Date including on third party properties and platforms to which we syndicate or otherwise distribute Content pursuant to our delivery of then current Services;


I read the above paragraph as meaning that as I am the creator of the design and the copy, and provider of the images, I own the copyright on all these items, and only licence their use to the host.

However, further down the T&Cs, it says:

Unless otherwise specified in the Service Rules all IPR in Created Content shall be exclusively owned by us and shall not pass to you, including where the Created Content is derived or developed from Content or instructions supplied by you. You will not have the right to use Created Content in any form or media other than the Services unless you have obtained our written permission.

Does this mean that the host is claiming copyright? I wish to replicate the web sites on a different platform with a different host, but do I have the right to do this?

Your advice would be much appreciated.

[AndyJ]

Hi sunnyside and welcome,

I would really need to see the whole of the T&Cs including the part in which certain terms like 'Created Content' are defined. For example in the two parts you quoted, they use both 'content' and 'created content' and it's not clear to me whether these refer to different things.

However it certainly looks as if they are claiming copyright in the parts of the website that their software generates, for instance the code. This would mean that the elements that you submitted, such as text or images, would remain as your copyright (or a third party if you used licensed images, for example) but the copyright in the structure of the site as produced by the code would remain theirs, and you are prevented from transposing it to another host.

You may be aware the software is also subject to copyright (see section 3(1)(b) of the Copyright Designs and Patents Act 1988) and this has been found by the courts to include HTML and other coded used to generate websites even though strictly speaking HTML, CSS etc are markup langauages and not a 'computer program' as cited in the statute. But if you at all experienced in coding you will realise that most websites are constructed from fairly boilerplate structures and so although there may be variations, there are only so many ways to get the same look and feel in two separate websites. This means that there are limitations on how much simple code created by one person can be said to be protected by copyright, to the extent that no-one else can use that code without getting permission. I suspect this principle will apply to the code which makes your website work at present. The more complex the code, the more likely it is that certain elements within it will have the necessary quality of 'originality' to meet the threshold for copyright protection. Ultimately code needs to conform to certain prescribed structures and layout otherwise browsers won't render the site properly.

If your use one of the many (free and and paid for) website design software packages such as WordPress, BootStrap or Dreamweaver, you should be able to recreate something that looks and behaves pretty much like your present site(s) but without the hosting features of your present service. As far as I am aware none of these packages go as far as claiming copyright in ypur completed code structure.

[Sunnyside]

Many thanks for your very helpful reply.

I have done a search for "Created Content" and there doesn't appear to be any other mention in the T&Cs about Created Content, other than the following definitions:

Content means any creation of intellect and includes code, text, layout, design, shading, colouration, images, audio, animation, video and links.

Created Content means any Content created or provided by us as part of the provision of Services.

IPR means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information, know-how, trade secrets, and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.


I've always been of the belief that copying the code was indeed forbidden, so nobody could copy the code in order to set up a web site elsewhere; but that the design - ie the appearance of the web site - would still belong to me because I created the design from my own imagination.

It sounds as if that may not be the case though.

I very much appreciate your input on this.

[AndyJ]

Thanks for the definitions. That confirms my earlier assesment of what I thought was going on here.

As for the issue of you owning the results of your creativity, I would agree that that is probably the case. The tricky part is distinguishing between the code and the end result. When the law on copyright for 'computer programs' was first introduced, programs were written on a keyboard in a similar way to writing text, so programs were treated as if they were literature. That doesn't really hold today when the process of building websites and writing code is so automated using other software, and indeed AI. The courts really struggle to deal with software related copyright issues. You may be aware of the extensive litigation about APIs which, in the USA at least, has radically expanded the definition of computer programs into the areas of interface standards and protocols. In my humble view this is misguided, and unhelpful. This is a subject which will become trickier still for the courts to deal with as AI is used to generate more and more code, and humans have less and less input to the process of creating code, because with the law as it stands today (both in the UK and USA), an AI machine is incapable of being a creator for copyright purposes.

Anyway that is something of a diversion away from you basic question. I'm afraid I am not able to second guess how a court might decide the issue, supposing that you decided to challenge the website building/hosting company's terms and conditions on the created content claim. Nor can I second guess if the company would actually want to pursue a claim against you if they discovered that you had ported 'their' code to another host. This might have such negative public relations consequences for them that they would wish to avoid going down that route.

[Sunnyside]

Thank you, Andy - it's a minefield, isn't it.

I don't want to get into any legal hassle so I think it would be safest just do a new design when I change platforms.

Thanks again.