/Culture/ The legal guide for designers
15/12/2008 | Filed under Discover > Culture
When you create a website, you’re navigating a legal minefield. Specialist technology lawyer Philip Thompson, of White & Black, outlines the most common pitfalls and how to avoid them
The web may be the new frontier, but it’s by no means a lawless one. All the complex rules and regulations that govern our society apply here just as elsewhere – and web designers ignore them at their peril.
You need to make sure any contracts you sign are watertight. You also need to protect yourself and your client from being sued for infringing patents, Trade Marks or other intellectual property. Plus there’s government legislation to comply with, such as the Data Protection Act, or the 1995 Disability Discrimination Act and its implications for accessibility. The list of obligations sometimes seems endless, and it can be tempting to just bury your head in the sand. Yet there’s no need to despair. While the fine detail of the law can be complex, the concepts behind it are usually relatively straightforward, and familiarising yourself with them will go a long way to ensuring you do the right thing. I’ll outline the basics of what you need to know, and how to protect yourself and the work you create.
The pitch
So you’re about to pitch an idea to a client. You haven’t even got their business yet, so you don’t need to worry about legal stuff, right? Wrong.
Think about it. You’re going to give someone all your best ideas about how their site should be designed, before they’ve paid you a penny. What’s to say they won’t take ideas you’ve spent a lot of time and money developing, and give them to someone else to put into place, at no cost to themselves? Before the pitch meeting even takes place, you should be thinking about whether to ask the client to sign a non-disclosure agreement (NDA; also known as the confidentiality agreement). By signing this, the client is agreeing to keep your ideas confidential and only use them for the purpose of deciding whether or not to engage you. It asserts your rights (such as copyright, trade secrets and patentable work) in any information you present.
Of course, in practice, an unscrupulous firm – particularly a big, powerful one – might still go ahead and use your ideas in an unauthorised way, but an NDA is a significant deterrent to this. And even if you win your pitch, it can still be a useful thing to have. If, for example, the client asked for a number of alternative designs as part of the same pitch, you’d be free to recycle ideas they rejected for future pitches.
Because your client may take copies of the pitch document to show to others, it should include a small notice on the front page stating that the information is confidential. When the stakes are high (for example, if there’s an aspect of your work you believe may attract patent protection), you might ask each recipient to sign a separate non-disclosure agreement.
Drawing up a contract
So you’ve won your pitch, and your client has commissioned you. Now comes the important part: drawing up the development agreement, a contract that puts down in black and white what both parties expect of each other. This needs to be very clear on the agreed scope of work and other key deliverables, outlining milestones and service levels. Any vagueness or ambiguity will come back to haunt you further down the line if your client isn’t happy with your work, and claims you haven’t delivered what you’ve promised.
A common question on the .net forum (forum.netmag.co.uk) is whether there’s a ‘standard contract’ that web designers can adapt for each job they take on. While some sites do offer such documents, you’re best off avoiding them. Every business relationship is different and basic packages will never be able to reflect what’s appropriate for a specific situation. Getting a good lawyer to draw up an agreement that’ll suit your needs may cost money but will probably save you a great deal more in the long term, as well as giving you peace of mind.
The process will also be a lot smoother if your lawyer has at least a basic understanding of the technical nature of what you’re doing. By instructing the right specialist lawyer at an early stage in the process, and by giving them all the relevant information they need, you can ensure that your contract will accurately reflect what you and your client have agreed.
Doing so often has the added benefit of throwing up potential problems you otherwise wouldn’t have noticed until much further down the line. For example, it’s one thing to set out ‘milestones’ that you need to achieve by a certain time, but how clear are they? Do they rely on the client’s judgement? Let’s say you’re paid by reference to a milestone: could payment be delayed if the client hasn’t provided you with the information you need to reach that milestone? Ensure your agreement addresses all these issues.
The agile approach
Of course, some clients don’t know exactly what they require at the outset, as the project may evolve during the development process itself. There’s also a danger that too rigid an agreement can restrict the scope for your creative development. At the opposite extreme, if the spec is too vague, it can be almost worthless, as no one can say with any certainty what it is you’re supposed to be designing!
To address this, some web developers are now beginning to adopt a technique similar to the ‘agile’ approach adopted in some software development projects. Here, development is dealt with as a continuing, evolving process and each stage is documented only a couple of weeks in advance. This enables the development process to be more collaborative and responsive to discoveries along the way. This can help to ensure that the final product satisfies the client’s needs at the end of the process rather at the start.
Some people believe there’s a conflict between an agile approach to development and the traditional approach of pre-agreed milestones, payment, schedules and service levels, but this need not be the case. While you can’t, of course, have an ‘agreement to agree’ (ie. a commitment to agree something, as yet unknown, at some time in the future), it is possible to legislate for the basis upon which an agreement can be made.
Agile development simply requires a more sophisticated approach to the process commonly known as ‘change control’. This involves the insertion of contractual provisions to allow for variations to the existing contract. The key thing to remember is to agree the next steps in writing, so as to ensure that this approach does not take away any legal certainty from the commission.
If all this is starting to sound scary and intimidating, it shouldn’t. The basic point of drawing up a contract is that you’re less likely to encounter problems along the way if you think through all the issues at the outset. Stick to this principle and you shouldn’t go far wrong.
Who owns the copyright?
One of the most important issues you and your client should cover in the development agreement is the ownership of intellectual property rights (IPR) in the website. In the context of web design the two most important types of IPR are copyright and Trade Marks. Copyright is governed by the Copyright Designs and Patents Act 1988 and Trade Marks are governed by the Trade Marks Act 1994.
Under UK law, the text and the code to a website is automatically protected by copyright: contrary to popular belief, you don’t need to add the © symbol. Having said that, it doesn’t do any harm, and makes it clear to people that you intend to assert your rights – especially when so much web content nowadays is explicitly open source.
But if you’re working for a client, who owns the copyright in your work? This is something you’ll have to agree – and put in writing – beforehand.
The client may be happy for you to licence content to them while you retain ownership. However, if they’ve paid you a significant sum to create a bespoke website for their web-based business, including some unique functionality, don’t be surprised if they expect ownership of copyright to be assigned to them.
If your client resists your wish to grant a licence rather than a full assignment to them, you may want to offer an escrow solution as a compromise. This involves putting the source code of the website into the hands of a trusted third party. If you fulfil the conditions of your development agreement, then the code is returned to your ownership. If, however, certain circumstances occur (you become insolvent and cease to trade, for instance), the code is released to the client.
An escrow agreement needs to state the specific circumstances when the code can be released to your client. It’s incumbent on you as the owner of the source code to ensure that the code placed in escrow is kept up to date. There are a number of escrow agents who provide these services, the best known of these being NCC Group.
While older clients usually want you to use their established branding when creating a website for them, new clients – especially those whose main focus is the web – may ask you to create new branding material. It’s vital that your development agreement specifies who has rights in this material. You could, for example, consider restricting the type of media in which the client is licensed to reproduce the Trade Marks you’ve created. While you may be happy to grant your client a non-exclusive, royalty-free and perpetual licence to use the website logo you’ve created for them, are you equally happy for these to be used on television or in magazines?
External content
Legal issues don’t just stop at the content you put on the website – they also extend to any external content the website links to.
For example, if your client wants an RSS feed that links to items on a third-party website, it’s best for them to seek the permission of the owner of that website, because this could be prohibited under that website’s terms of use. Your client should also be careful that the feed does not lead to any potential claim that they’re either endorsing, distributing or publicising any potentially unlawful information contained in the website. This area is largely untested in UK law, but the theoretical risk is there.
If your client wishes to create a website that contains a wiki or other user-generated content, they need to ensure that there are procedures in place for any offensive, defamatory or unlawful content to be removed. The decision whether or not to moderate a website is a difficult one to reconcile legally, but either way the client will need to have in place terms and conditions of use (to deal with copyright issues, for example) and a complaints procedure, which must be adhered to rigorously to avoid potential liability for the content placed on the website.
There are two additional risks to consider if setting up a corporate blog. The first is the risk of the company’s reputation suffering in the eyes of the public as a result of information contained in the blog, and the second is the possibility of confidential information being leaked through the material posted on the blog. A company should have specific terms and conditions over what may or may not be disclosed in a blog and should try to have a policy in place governing the use of blogs in the company.
It’s usually prudent for a person in the company other than the author of the blog to be required to approve a blog entry before it’s published. The company could also give this person responsibility for providing guidance to writers and dealing with any complaints received. The company will be held responsible for any blog that’s created either during the course of an employee’s employment or made on behalf of the company, whether as a marketing tool or otherwise.
As you can see, there are many points of law to consider when designing a website. And while this article and the accompanying boxes do not represent an exhaustive list of issues that may arise, I hope I’ve helped raise awareness of some of the legal implications of web design and shown that, when it comes to potential disputes, prevention is always preferable to cure.
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Comments
andy / 15/12/2008 / 18:19 / http://www.mayhemnewmedia.co.uk
so what about if someone steals you work, whats the course of action? dial 999??
Stephen D / 18/12/2008 / 07:49 / http://www.digitalizes.net
Some good advice here.
Legal issues are very often overlooked by web designers.
Is there a section of your website where web designers/bloggers can download sample contracts. privacy policies or terms of use (etc) documents?
Hobo / 22/12/2008 / 19:25 / http://www.hobo-web.co.uk
Nice article. It might be worth designers considering the Companies act which states what a website owner needs to display on their site.
Paul Levy / 01/01/2009 / 14:06 / http://www.ideasman.com
I liked this article; I think so much of delivering successful web projects is spending time with the client to ensure that you understand their business needs. During this process you inevitably end up giving a lot away, ideas, approaches, choices of appropriate technologies, brand ideas etc.
The best advice I can think of is to build a good working relationship and understanding with the client before you actually commit to doing anything for them. Only work with clients you trust, as any client could (if they wished and had the inclination or time/money resources) make life difficult for you with legal claims.
In this fast moving industry we all try to ensure that we can make things happen for the client but we cannot possibly cover every single eventuality. I would also say research the clients modus operandi, how they do business.
There are some really generous clients who see the relationship as a mutually beneficial one, openly valuing your work, whilst overs will try and suck out the life force from you. It's important to be able to differentiate the difference, but easy to mistake one for the other in your enthusiasm to please.
Having said alll the above I think you do need to know broadly what the law provides for in every eventuality, for one, you will need to educate clients who generally don't have a clue.
My main pointers would be
Have a clear simple spec with costing (if you don’t guess who will foot the cost of any modifications)?
At least understand basic copyright law, we are after all providing intellectual property services.
acidsmile / 06/01/2009 / 19:09 / http://www.acidsmile.co.uk
w00t! this could have not come at a better time... all my questions and more answered!
thx.
Bill Lowden / 21/01/2009 / 18:10 / http://www.delightfulwebdesign.net
It's a fine line between protecting your intrests and scaring away potential clients. Great post.
Gripper / 23/01/2009 / 11:36 / http://www.gd-graphics.com
Good Article.
I can't help feeling though this is aimed at the larger projects rather than web site design and development projects for smaller clients. Though I still do advocate a written agreement which sets out what you will do and for how much its unlikely that the smaller client will require a contract drawn up by a solicitor.
With smaller clients I like to keep them sweet by over delivering on promises, giving them a little bit more tahn what they asked for. Repeat business is better than having to find new clients all of the time.
Gerard / 26/01/2009 / 18:18 / http://www.gemrelocations.com
thanks for this. I have paid recently for some design work to be done and just assumed since I had paid for the work I would own the result of the work but maybe not.
Thanks again
james / 23/02/2009 / 19:41 / http://www.lynda.com
good article
Rob / 23/04/2009 / 15:05 / http://www.bigbravedog.co.uk
Excellent article and sound advice. If nothing else, this type of approach offers peace of mind to clients that they are commissioning professionals. As one of the few unregulated groups of skilled professionals, it's important to ensure all parties are protected if things do go wrong.
