Copyright in a digital age

You might find it ironic that as a web designer I know nothing about copyright, and I read it all last night.

I think this is part of the problem, and hopefully the presentation I’m going to take you through today is going to explain the issues within the web development industry itself.

We’ve got policymakers, we’ve got solicitors, we have organisations that are all talking about copyright and understanding it and are making a best effort, but in between you as the client, as I would call you, and the web stands me, and, as I said, I don’t know anything about copyright, and this is a real issue.

I’m going to take you through some of the issues and why they exist within our industry and then list some practical takeouts for how organisations might be able to better adapt to the style of web development firms and the ways they work. In going through this, it’s important to point out that a lot of what I’m going to talk about is avoidable, but it’s very difficult. I’ve been in this industry for 12 years, and today I still have these issues in my firm. They occasionally pop out and come up, and I can see we’re a very old business by comparison with others, and these problems can be avoided.

The issues I’m going to go through can certainly be avoided, but there’s a lot to avoid. To set the scene, I think it’s very important to understand, as I said, the state of the nation and why, as web developers, we often break the rules – why it is that copyright doesn’t mean a lot to us.

We’re not bad people. We’re not nasty people. It’s just how our industry is. It’s just how things happen, because as I said, the biggest issue is we leave our websites in the hands of web designers. It’s like a home builder. You say, “Well, I guess it will get built”, and most of the time it’s good, sometimes it’s not.

I would suggest that most web developers are breaking copyright most of the time, and I’ll explain. I’ll justify that as we go through this.

What are the realities of modern web design?

The first reality is that web developers and web designers are asked to do a lot more than they probably should be. They are developing a whole business with content and customers and enormous amounts of things online. All this exciting stuff is happening.

In a business you have CEOs and directors and executives and all sorts of clever people who manage the business, and yet when it comes to your website and your content and your strategy, you’re handing it over to a bozo like me, somebody wearing jeans and a jumper on a better day. I dressed up for today.

So web designers are being asked to do a lot more than they should. We’re not trained to do it. We don’t know these laws, as it were. To put it in context, – and when I talk about web development I’m steering clear of internal departments such as in the ABC (not to say that it doesn’t happen in such departments) – but most web development comes out of web development firms that are just small businesses, often five, ten, fifteen, twenty people at best. They’re designers, they’re developers, and you’re asking them to do a lot more, asking them to develop the foundations of our organisations online.

For us, copyright is a C in a circle, and to make it you go bracket C close bracket, and the software does the rest. That’s as much as I know about copyright.

We have no standards in our industry. Somebody from AIMIA, which is one of the bodies which reflects our industry, said, “Should we regulate the industry?”. It’s just such a silly question. How can you regulate? This is the internet. We’ve been trying for years and we [slip] under everything, Mr Conroy, we duck and weave.

We have the W3C standard about coding, but that’s ignored half the time. You’d be stunned at how many websites do not comply with W3C.

Of course, even if we had standards, as I said, who’s going to enforce them? The police? Who’s going to do this?

You’ve got web development firms who are doing all this work, no standards, no compliance, no regulation, no enforcement, and certainly no code of conduct and very, very little industry training. These are the people who are going out with your copyright and dealing with others, dealing with content information, business money, all sorts of fantastic things, and we don’t know half of it.

(This is going to lighten up, by the way. It becomes very positive as we get into it!)

Most people have no idea how websites and strategies and content are developed. At the high level, but not at the deep level, not as you start to dig under. Most people have absolutely no understanding of it. Limited control and understanding. If I tell you something, that’s it, you can’t dispute it. That’s the fact of our industry. We’re only fifteen, twenty years old at absolute best, and if I tell you something, you can’t dispute it. The client doesn’t understand what’s happening.

Did you steal this? No, I didn’t. Okay, you didn’t steal it then. You didn’t break this. You didn’t do this. That is a real reality, and, as I said, the customer, the client, on both sides has very little ability to control or to understand the process.

As I said, web designers are not bad people – I’ll come to some specifics about copyright shortly; I’m just trying to set the framework. We’re not bad people. It’s just that we’re under enormous pressure.

This is one of the tightest games in town. It is such an open market, you get three quotes, everyone’s losing money in the industry, so you’ve got to find ways to sort of cut corners, as it were. The client wants to do this. How can I get this, et cetera, et cetera, et cetera? This is what leads to inadvertent and adverse decisions being made by web designers, whether they know them or not.

I’m sure most of the time web designers are not doing this deliberately, but often they are – and I hope there’s nobody from the search industry here – but in the search industry often these decisions are deliberate.

Of course, it’s the client that’s ultimately responsible for these breaches of copyright, for this IP theft. You’re the ones that pay the bill, and you can come and try and sue me, but, as I said, my only asset apart from my jumper and jeans is a copy of Dreamweaver. I don’t have a yacht or a car, so you’re going to be left with this mess, the embarrassment. You’re the one who’s going to have to clean up the mess because I’ve stolen and pilfered. If you get blocked in Google, you’re going to have to fix it. I can’t help you.

(Blacklisting in Google, for anyone who’s interested, means it’s all over, your site’s off. We just turn off your site because the web designer’s erred and broken the rules.)

So there’s not much you can bring back against me, and this is worth understanding.

I should mention before going into some of the specifics that it is not limited to any particular sector of the industry. Dare I say that within the ABC, stuff might occasionally, inadvertently, be stolen, by a designer who doesn’t quite know or understand or care. They might be trading off. It happens absolutely everywhere. As I said, the designers and the developers often just don’t know.

I did a poll before I left the office, and somebody asked, “What are you talking about?”. I said, “I’m talking about copyright on the internet”. He said, “What’s that? There’s no such thing”. It was a joke. He’s a smart developer, he’s not silly, but he was sort of joking about the fact that there is no copyright in the internet: just go off and grab.

We’re all at this Symposium going, ‘Yep, I care about copyright, and I’m never going to let this happen.’ Well, I’m the problem. I’m the gatekeeper, as it were.

One of the biggest fundamental changes in web development is that when I first got into the industry, twelve or thirteen years ago, you built five-page websites. Today, the challenge is to develop 25 pages of content today. It’s all about search. You’ve got to be blogging and writing and propelling and frothing and training because, if we don’t, somebody else will, and obviously that affects some industries more than others. The sheer amount of content that is being produced is just extraordinary. Our business produces thousands and thousands of pages a day for clients. Our clients just endlessly ask, “What can we do? What can we beat? How can we get traffic? We’ll make four nickels per page, and if we sell a billion pages we’ll be millionaires” – all that sort of silly stuff.

In web development, nothing matters more than search. It drives 95 per cent of traffic, and search engines pick you up because of your content. I think you can start to see the issue here. Top ten lists, regurgitation of content! We tell our clients, rightly or wrongly, that when they write their blogs they should subscribe to newsletters in their own industry – 20 or 30 newsletters – get some ideas, and if they’re short of time just say, “Hey, there’s a great article in” – (insert name of newsletter) – “I’ll take an excerpt”, and there’s your content. It’s just a content play.

Have they broken copyright law? As I said, I don’t know. I guess we’ll find out in speaker number two or three, but that’s the sort of advice that a business like mine is giving to clients every single day.

The content is king. It’s absolute king, and certainly when it comes to social media even more so, and we’ve only got an hour, and we’ve got to do all this sort of stuff.

I think you can see the pressures on these modern sites frothing and moving forward at a million miles an hour, and us poor web designers are just under enormous pressure to produce anything and everything. I haven’t even covered design yet. We’ll come to theft of imagery in a minute. But here am I. I’ve got half an hour to get it out. What am I going to do? What’s a developer or a designer or a copywriter going to do?

They don’t know. They’ve got to get it out and they’ve got to move forward. This happens internally. This is a really big issue we see with clients. We’ve got some fantastic clients and it happens internally as well. So it’s not just the web designer.

One of the other issues is scraping, and I’ll come to what scraping is in a moment, but certainly we scrape content, we take content, we sort of repurpose content. Do we put a link back and say, “Hey I borrowed this?” Sort of, maybe sometimes. Not really. No, we don’t.

We see content and we look for inspiration. That’s how copyright is in the web development industry. I’m not saying this happens with everyone all of the time, but it’s happening right now a lot. A lot of web designers and producers and content publishers are producing material this way.

Although this certainly doesn’t happen in my business, one of the biggest issues in the web development industry is that you may have paid for something and the web developer or designer is going to use that again for another client. That’s very common. Design, development, even copy.

In search businesses, they often reuse and reuse and reuse content you’ve paid for, and charge someone else, and pass it off for every single client.

Often (and this is very common) a web developer will link out of your website and you won’t even know. They’re using your copyright and your site to gain an advantage for them or for their other clients, and you’re not even advised of this. You’re not even told. Certainly there’s a reasonable chance you’re helping my client by trading off your name.

We have software that every day polls Google to see if there are other web design firms trading off our client names. I’d say we send ten, fifteen letters a week: “Can you please stop claiming that you are whoever you claim you are”. This happens constantly. They pop up and they steal and they scrape and so forth.

There are certainly some things you can [do to limit your risks]. It starts internally, and it starts with engaging a the web developer who understands this, reviewing and knowing what to look for. As I said, prevention is certainly far better than a cure.

If we can limit this, if we have a standard, if we have conduct or a code of conduct internally that drives how we think about this and the policies that we work with, that’s going to be much better. When somebody does plagiarise an article or steal an image, at least we can say, “Hey, look, this shouldn’t have happened”, when we write the email back and apologise and say, “Hey, well, look, at least we had procedures and policies in place. It didn’t work, but don’t worry, we’ve let him or her go”. [We have to make it clear that] it’s just unacceptable to us as a business.

The first is planning, and this is really simple. You’ve got to get smart about the process. I don’t know why it is that I meet some amazingly clever clients and they don’t know or care how websites are built. You’ve got to know how they’re built. You’ve got to understand this fundamental engine. You can’t just look at some analytics and believe and write another cheque for five and a half thousand dollars. You just can’t do that. You’ve got to understand what’s going on because until you understand what’s going on, you’ve got no control.

Again, I’m not suggesting that all web designers are like this. Most web designers I know are really good people, but some aren’t, and some search companies, as I said, particularly in search, don’t mean to do it.

Maybe I’ll explain search and the challenge here, because this is sort of the epicentre of where it starts.

A search company is incentivised to get its clients to number one, but there can only be one number one, and if the person at number one is doing some funny stuff, what do you do? Do you accept position two or do you just say, “Well, I’ve got to fight fire with fire?”. This is a real challenge and this is where copyright comes in because you’re stealing and scraping and borrowing and doing all sorts of amazing things.

As a test yesterday we typed ‘SEO’ into Google just to see what would come up, and the first result is a legitimate search engine company, a very good search engine company. The second result was a company – it’s extraordinary – that had scraped [the top company’s] entire website and just changed certain key words. That’s all they’ve done.

How could you live with yourself? Well, they can obviously live with themselves. They’ve probably got Ferraris, they’re probably doing pretty well. But they had scraped 100 per cent of the site and just changed certain key words. That’s the search industry. That’s what the number two in the Australian SEO industry has done. Hopefully you can start to see. This is a real issue.

Next, developing internal policies about your content is central. Organisations are changing. We’re starting to engage in social media. One-third of our time is spent on Facebook and that sort of stuff. We all know that if organisations want to be relevant, they’ve got to be there. That means changing the way you write and the way you talk. It’s Twitter and all that sort of clever stuff. You need to have internal policies about doing this: “We do not accept this. We do not do this”. Whatever that content is – video, audio, et cetera – it’s got to be original, we’ve got to credit, et cetera.

The third, just for what it’s worth, is: start monitoring your competitors.

There’s plenty of technology out there that will let you do this, but start to look and see because you might be surprised at how many of your competitors are trading off you and are taking your content. We fight daily in our own industry with people who steal content from our site. We are a very optimised company. We’re number one in search. We’re a good search company. Whole paragraphs, whole pages of text are being taken. We’ve got to constantly go out to try and stop this. So monitor your competitors. That’s the best if you’re planning just to understand the state of the nation.

When it comes to building the website, these are some really practical takeouts if you’re using a web developer. Again, I’ve steered clear of internal departments, as often there’s less pressure on internal departments. That’s not to say that this sort of stuff isn’t happening there, but I am focusing on the development industry – web designers, developers, agencies.

If you’re going to engage a developer, try to understand their model. Just stand back and look at what their model is. Are they churn and burn? Are they custom? Just get a feel. Is this the sort of business that I’d like to be working with?

That’s very important, because there’s nothing wrong with being template driven, but it lends itself to duplicating. If they’re not building the site from scratch and they can build you a whole website for $199, it’s pretty good. Everybody at my firm is $250 an hour. That means that would give you approximately 44 minutes to build your whole website at $199. That’s pretty impressive. It’s pretty fast. It will often take weeks and weeks and weeks [without merely copying]. So try to understand the model. That might give you a little bit of an idea.

The next takeout is: within the development firm – and this comes from plenty of experience – are there too few people doing too much work?

Our industry is chronically unprofitable. It is absolutely extraordinary. It is only the top tier of agencies that make real money – the sort of profit margins you would expect – and often they’re just crammed and crunching and they’re doing whatever they’ve got to do - taking images, borrowing, duplicating sites, taking your site and duplicating it and changing it to pink and giving it to another client, and all that sort of stuff.

Are there too few people doing too much work? This is really important. Are they promising quick results – nothing is quick online, it’s just like offline – and amazing search rankings?

If somebody promises you number one on Google, get out of there, just run. You just can’t promise that sort of stuff. That’s funny stuff. You might become number one and then you’ll get blacklisted, and then you’ve really got a problem. Then you’re going to have to call Google, and they don’t have a phone.

The other thing I would suggest is that you’ve got to make sure you’re working with an organisation that’s got a bit of style, that gives you that sense of confidence. Always ask for ten websites [you can look at]. Every web developer has three websites they like. Ask for ten and go through them and look for commonalities. Try to see if there’s anything there that’s concerning you a bit. They seem to be using the same imagery all the time: the girl with the headset, and the two hands shaking in front of the globe.

When it comes to practical things, let’s talk real copyright online – I only learnt this last night, so bear with me – get a proof of every image purchased. Image theft online is extraordinary. If you go to Getty, an image costs five and a half thousand dollars for fifteen minutes’ use. So we use iStock and all these cheap image sourcing places.

But make sure you get proof of purchase, because I can tell you at the moment Getty Australia has written to about 60,000 or 70,000 businesses in Australia, because they’ve got software that can test the watermark in an image and scanners that go through and they scan your site in half a second, and say, “These images on your website have not been paid for and here’s the bill”. I heard of one client who had a site built a couple of years ago – four images cost him $28,000. Maybe it was US, I don’t know, but $A28,000 Australian is still pretty significant.

You’ve got to get proof of every image purchased. Image theft is rife. Get written confirmation of all the technology and the licences involved in the construction of your website. You need to make sure you own those licences. You’ve got to own all those licences. That’s very important. Get a full breakdown of what they are.

I’ve said here that WYSIWYG is not always WYSIWYG.

WYSIWYG is the tool that lets you type into a content management system as if it’s Microsoft Word. You’ve got to pay for that. It’s not free, but I can tell you that even in our business we get caught out occasionally because the developer doesn’t tick the box. They just install the WYSIWYG and keep going. Then we do an audit every three months and say: “Hang on. It’s only $1 or something”, but you haven’t paid for it. So it’s a real issue and, as I said, this is really important.

We got caught out. We had a fantastic, absolutely lovely designer – you’re not going to believe this – who designed my blog. It’s the most gorgeous blog in the world, and that’s because he stole the design. Somebody called me and said, “Hey you’ve got some great articles in your website about copyright and images, and I find it amusing that you’ve stolen the background image”. I had to publish a note to say I was unaware that this was the case. The designer was thoroughly lashed, as you would imagine, all that sort of stuff.

You’ve got to make sure that the concepts are completely original. Get that signed off. You won’t be able to disprove it, but when somebody comes forward and says, “Hey, you’ve stolen my design”, you can go back to the designer and – take their jumper and pants, I guess.

Also, when you’re building the site, as part of the handover, request all the source files, the database technology and all the files. You need a reasonable handover. How many times have you heard that all of content and artwork and all of these clever things are with the web designer, and then there’s an inevitable fall out.

Nobody’s friends with web designers after two years. You fall out, you ask for your website, and they tell you where to go, and suddenly you’re going, “Hang on, hang on, hang on. Don’t I own that? I thought I owned this?” “No, no, no, no. You try getting it off me!” It’s on a secret server and they hold you over for 10,000 bucks. You need to have a pathway for handover before you start, when you’re all still friends. We work with some very large law firms. We have DVDs in escrow with all the code. I don’t know what “escrow” means but the file’s put in a safe in a partner’s office and if we fall over, the partner opens the safe and off they go.

Really quickly, when it comes to owning and operating a website, there are a few takeouts. One, you need to have a blanket policy for all your sites. If you’re running multiple websites, I would certainly have a policy that covers how you produce content and why you produce content, what is acceptable and what is not acceptable.

We work with Glaxo. Glaxo have 263 web design companies working for them. It’s extraordinary. I don’t know how they keep track of them. If you don’t have standards, one designer does it this way and another does it that, and somebody else is writing content. You might find that your own web design, your websites, are fighting against each other. You should know that if you are producing a policy – we sometimes get them and it makes us roll our eyes – you can’t write a demeaning policy. The web designer is not trying to rip you off, not trying to screw you, not trying steal content and steal images and do things up. It’s sort of by accident, but you just make it really clear: “This is our code of conduct. This is how we do things”, and you just need to tick all these boxes when you hand over the files.

As I said, only one website can be number one.

The search industry is absolutely out of control. I asked around as to what number I could give, and they wouldn’t talk to me, but I would suggest at least a third of the industry are just cowboys, they’re crooks, and they steal and steal and steal, and they’re putting it under your site, and you’re really pleased but it will catch up with you. As I said, it is very short-term traffic. A 5000 per cent increase in traffic. How does that happen without something really strange happening? The other companies are also going up, but you’re scraping and stealing and doing all sorts of other stuff that you’re completely unaware of, and, as I said, that’s why you’ve got to monitor your competitors because they’re doing the same thing to you.

I would make the point that this unethical behaviour certainly goes beyond the legal world; it goes into Google’s [processes]. You’re now in a brand-new world. You can’t use the courts to end these things, and it’s very important that you should try to understand the process for reconciling these sort of matters because you do need to go through Google. If somebody’s using your trademark in AdWords, the courts aren’t going to pull that down. They can, but I’ll see you in a year’s time. You need to know the process through Google. It’s fairly easy. It’s fairly straightforward. They’re trading off. Write them a calm letter. Just do things calmly.

Next up, internal plagiarism is a big issue we’re seeing right across the board. This happens every so often within our business. We require all of our staff to write a blog every week, and occasionally, just occasionally, this happens, and you sit down and you warn the staffer, and certainly our policy is, “If it happens again we’ll have to ask you to leave because it’s just theft and we just can’t tolerate that”. It is very important that your staff are aware of these laws, that they’re aware they cannot be taking this and stealing it..

One of the most important things is that you secure your domain name. You find this all the time, but one of our clients is the largest camera shop operator in Australia and they can’t get their domain name. That’s not rare. Just as a side note, you need to monitor your trademarks online, and certainly you need to track your Facebook addresses and the rest of it and lead by example.

Don’t infringe your competitors’ trademarks. Search is a long-term thing. Web development is a long-term thing. Results take time. If you do the right thing. and you plod and you keep going at it, it will come good.