Most dotcoms prefer to enter into content licensing agreements, which would confer upon them the right to use the content without paying a high price for it. Here, we have attempted to outline some of the issues pertaining to content licensing on the Internet.

Like any medium of communication and interaction, the Internet requires a vast and continuos amount of Content to be generated. Content placed on a Web site may be either specifically devised for it or licensed or assigned from the owner of such content. This makes content transaction big business, both for developers and content licensing companies.

A license is a means of providing usage of a piece of property without giving up ownership. Content may be licensed from a content database normally owned by a content company. Items licensed on the Web include articles, book extracts, photographs, graphics, illustrations, audio/video/CD clips, tables and reviews.

Traditionally, content licensing has taken place in the mass media areas of television and radio where they are referred to as broadcasting rights, and in the print media, where they are referred to as copyrights/publication rights. This concept, in the recent past, has also been extended to the Internet, which is a holistic combination of all traditional media, giving rise to concerns relating to Webcasting and copyrights.

Most dotcoms prefer to enter into content licensing agreements, which would confer upon them the right to use the content without paying a high price for it. Here, we have attempted to outline some of the issues pertaining to content licensing on the Internet.

When is a license required?

The licensee would need a license if he intends to Webcast, reproduce, modify, distribute, perform in public or display in public in any manner, the concerned matter or work that is not its property. A prospective licensee would require to have a copyright in a matter it intends to use even if:

• The amount of material being copied is very small. Thus, in one case, where a news article used 300 words from a 200,000-word biography of President Gerald Ford, it was held that even though the portions covered were small, they were among the most powerful passages of the biography. The article thus constituted a copyright infringement.

• It intends to give credit to the authors of the work

The only time a Licensee would not require a license, is if the copyrighted work being used was:

• For Fair Use: Like quoting passages from a book for a book review, if the work is factual rather than creative.

• In the Public Domain: i.e. works not protected by copyright, like the works of Shakespeare.

Exclusive and non-exclusive license In the case of tangible property like a flat, the owner may license the use of the flat on certain terms and conditions without parting with the ownership of the flat. This license will, however, be exclusive to the licensee. In the case of an intangible property, like copyright in content, the added advantage is that there can be a non-exclusive license, granted to more than one licensee.

Under copyright law the grant of an exclusive license is akin to a transfer of ownership for the tenure it is so licensed. The term of a copyright is for the lifetime of the author and 50 years after his death.

Another issue that arises in the case of content licensing is that of the ownership of developed content. If a firm hires or employs personnel to develop their content, then in whom would the copyright in the said content vest? This is decided entirely by the terms of the agreement entered into between the parties.

Normally any work generated by an employee during the course of his employment would belong to the employer. It is therefore always advisable to enter into an agreement between the content developer/employee and the firm, to the effect that the copyright in the content so developed will vest with the firm. In the case of a freelancer who creates content, if this agreement is not arrived at, then the copyright will vest with the freelancer.

Intellectual Property Rights

Intellectual Property Rights (IPR) are intangible rights that vest in the creator/ originator of an idea. They include copyrights, trademarks, patents, industrial design and trade secrets. For content to be licensed there will be a licenser and a licensee. The IPR in the content will always vest with the author of the works. The authors with regard to the various work forms are:

• Literary / Dramatic Work - Author of that Work

• Artistic Work - Artist of that Work

• Musical Work - Composer of that Work

• Photograph - Person taking the photograph

• Cinematograph Film / Sound - Producer of that Work

Any content placed on the Web has to be adequately reviewed to prevent any IPR infringement.

Copyright

Of all the IPR laws, perhaps the most applicable to content on the Internet is that of copyright. The Indian Copyright Act 1957 deals with the issue of copyright.

A copyright, in a nutshell, grants an exclusive right to the owner of the copyright to do or cause to be done certain acts in relation to literary, dramatic, musical or artistic work cinematography film and/or sound recording. This holds particularly true in the case of copyrighted material acquired from third parties.

The first thing for the licensee to ensure is that the content is actually owned by the licenser or that he has sufficient rights to permit such use. Sometimes, the author may have permitted "X'' the use of the copyright only within a particular geographical area, e.g. publishing rights within India. If "X'' were to then license the same material to ``Y'' to place on his Web site which in turn would be accessed by readers globally, it would constitute copyright infringement for which ``Y'' may well be held responsible.

One way of avoiding liability in the case of third party grants, is to obtain necessary representations, warranties and indemnities from the licenser ensuring that:

• The licensed content is not harmful or illegal in nature e.g. defamatory, obscene and the like.

• There is no litigation pending or that may arise pertaining to the nature of the content

• All pending fees and payments with regard to the licensed content have been made by the licenser or any other party e.g., ASCAP, BMI, or in India Indian Performing Rights Society and Phonographic Performance Ltd.