Who Owns My Website? Ownership and Terminology

“I want to own my website” Sooner or later, every web design company needs to address this request. Simple as it sounds, it really is complicated. A website is built with many assembled parts and you may be surprised to learn who legally owns each part.

The following website terminology is a guide of what you really own and what you’re really just leasing.

Web Server – You Don’t Typically Own This

The computer running the Web Server Platform that hosts your website.

  • For most, hosting services opens a new window. The data center owns your web server and leases it to you or your web vendor.
  • Obviously, you will own your website server if you purchase one, but this is usually cost prohibitive to maintain.

Web Server Platform – You Don’t Own This

This is the system software running on the server. Common examples include LAMP (Linux Apache MySql PHP), Windows IIS + ASP.NET, and Microsoft SQL Server.

  • You will never own this.

Content Management System (CMS) – You Don’t Own This

A Web Application that is used to manage the administration of content for your website. Examples include WordPressDrupal, and Shopify.

  • You only own your CMS if you author your own source code and wrote it yourself. This is common to all software. Unless you’re a software company, you don’t own any software on any computer.
  • The CMS (and all software) is owned by the respective creators and licensed to you.
  • Custom programming written on top of a Website Platform might be something you can own. This gets complicated with Open-Source platforms due to the GNU General Public License.

Database Software – You Don’t Own This

Common examples include MySql, Oracle, Microsoft SQL Server, Microsoft Access.

  • You will never own the actual database.
  • You own your website data and content stored in the database if you author it.

Source Code (other custom programming) – You Don’t Typically Own This

The programmed code created in the language of the Web Server Platform that contains the logic and connectors to other software running on the server. Source code may also communicate with outside integrated system servers. The source code will generate the HTML/CSS/Javascript for the browser to render to your screen.

  • You will own your website source code if you or your employee authors it.
  • Otherwise, it is owned by the creator and licensed to you.
  • “Work for hire” could be specified in the agreement to ensure you own the website source code upon completion and final payment of the project. This gets complicated with proprietary and Open-Source platforms due to Intellectual Property and the GNU General Public License.
  • Control” of the source code is usually the critical concern with contracting custom development and is usually amenable by using an open-source platform.

HTML/CSS/Javascript – You Should Own This

HTML and CSS are the building blocks of almost all websites. It is a language that browsers understand. The Javascript is programming that may alter the HTML and CSS as one interacts with the website.

  • The website creator should provide an agreement giving HTML/CSS/Javascript ownership to you upon completion and final payment of the project.
  • Otherwise, unless you or your employees authored it, it is owned by the website creator and licensed to you.

Visual Design – You Should Own This

The combination of layout and presentable graphical assets like colors, photography and typography to create the user interface, images and videos, and readable content of the website. The HTML/CSS/Javascript will contain the information to display these assets so the browser can render the website on your screen.

  • The website creator should provide an agreement giving website visual design ownership to you upon completion and final payment of the project.
  • Otherwise, unless you or your employee created the designs, it is owned by the creator and licensed to you.

Text Content – You Own This

The formatted, readable, search engine indexable, copy and pastable website text that is rendered in the browser.

  • You will own your website text content if you or your employee authors the content.
  • Otherwise, the creator of the website is the legal “author” of the website text content.
  • The website creator should provide an agreement giving website content ownership to you upon completion and final payment of the project.

Photography – You Own This… If You Took The Pictures

The entire or part of a digitized photograph used on a website as either part of the logo, user interface, slideshow, gallery, video or other visual design asset.

  • You will own your website photography if you or your employee captures the photographs
  • Otherwise, you are only given a license to others’ photography. Keep a record of that license.

Browser – You Don’t Own This

A browser is the computer software we use to look at websites. Examples are Internet Explorer, Safari, Chrome, Firefox and Opera. A browser will display the rendered website which includes the HTML/CSS/Javascript and all visual design assets.

  • You will never own this.

Domain Name – You Don’t Own This Either. Surprised?

The Domain Name appears in the address bar of the browser. It is the humanly memorable, identifiable part of the website URL that is indexed by search engines, displayed in most marketing, and remembered as part of the brand.

  • You do not actually own a domain name even though you are a registered domain owner.
  • You have a contract with the domain registrar giving you “ownership” of the domain much like a contract with a telephone company for a phone number.
  • From Wikipedia: “…domain name registration with a registrar does not confer any legal ownership of the domain name, only an exclusive right of use.”

The Legal Reality of Owning a Website

  • You will never legally own the domain name, web server platform, CMS, web platform, database software, or language used to build your website.
  • You will usually never own the web server that hosts your website.
  • You are be granted a license to use the Intellectual Property of the website creator and/or the web platform used to build it.
  • Only if you program the website yourself or have a “work for hire” agreement, you will own the website source code.
  • If you author your own content, design the interface, take your own photographs, and create your own graphics, you will own all of the website “visual design” and content.

Own Your Website “Finished Assembled Work”

The website terminology that matters most is the “finished assembled work.” I define this as the HTML/CSS/Javascript, visual design, and the text content that is rendered by the Browser. The entirety of finished assembled work can be saved and stored by you, and can be rebuilt with any website platform. Look for contractual terms defining “finished assembled work” and stating you own the website “finished assembled work” upon completion and final payment of the project.

Article via: Barrett Lombardo, Co-Founder / Chief Operating Officer of Orbit Media Studios

Barrett Lombardo is the Co-Founder and COO at Orbit Media Studios. Barrett has been developing websites since 1995.

Cryptocurrency – What is the legal framework in South Africa for cryptocurrency?

cryptocurrency

What is the legal framework in South Africa for cryptocurrency? 

Bitcoin, Litecoin, Ethereum, Monero…what do they all have in common? They are all cryptocurrencies. You’ve probably heard of Bitcoin. Many people think Bitcoin and cryptocurrency are the same thing, but in fact Bitcoin is just one type of cryptocurrency. Cryptocurrency is a digital payment system that works outside of the banking system. It’s a peer-to-peer payment system that allows anyone anywhere to send and receive payments. Cryptocurrency payments are digital entries on an online database. Cryptocurrency is stored in a digital wallet and when you make a cryptocurrency payment, the transaction is recorded in a public ledger. Bitcoin was introduced in 2009 by an anonymous developer and it has since become the most well-known cryptocurrency in the world. It has inspired the development of other cryptocurrencies, such as the ones named above. 

As cryptocurrency gains popularity, it becomes harder and harder for countries to keep up from a regulatory perspective, particularly as the digital world knows no territorial or legislative boundaries. Because cryptocurrency operates outside of the traditional banking environment, and is highly encrypted (hence the name), it has become the favourite of cybercriminals. Ransomware attackers demand payment – often millions of dollars – in cryptocurrency. Cryptocurrency has a tainted reputation as a result, but there is nothing inherently illegal or bad about cryptocurrency. Therefore South Africa has fixed its sights on providing legal structuring mechanisms to make the grey areas of cryptocurrency regulation more black and white. 

South African Reserve Bank 

Recent investigations conducted by the South African Reserve Bank (SARB) have demonstrated how easily cryptocurrency can become decentralised. The investigation highlighted non-compliance with existing regulations, leading to tax evasion, money laundering and terrorist financing activities. 

SARB’s solution is to regulate cryptocurrency not as a currency, but rather as a financial asset. Legitimising the industry in this way will enable the asset’s compliance with anti-money laundering legislation and exchange control regulations, among others.

Position paper on crypto assets

On 11 June 2021, the Intergovernmental Fintech Working Group (IFWG) confirmed that crypto assets will be brought into the SA regulatory review. The published position paper on crypto assets provided three pillars of regulation:

  • Implementation of an anti-money laundering (AML) and counter-terrorism financing framework
  • Framework for monitoring cross-border financial flows
  • Application of financial sector laws

Regulatory framework 

The regulation of cryptocurrency will follow a phased approach. The first phase began in October 2022. The South Africa Financial Sector Conduct Authority (FSCA) declared that, effective 19 October 2022, crypto assets are considered financial products. 

This means that crypto assets are subject to FSCA regulation in terms of section 1(h) of the Financial Advisory and Intermediary Services Act (FAIS) Act. Individuals who provide advice or intermediary services related to crypto assets must be authorised as a financial services provider or as a representative of such a provider. 

The Conduct of the Financial Institutions Act (COFI) Bill will now include certain crypto-asset services as a licensing activity and define them as “financial services” in the Financial Sector Regulation Act, 2017. Applications for a licence must be submitted before 30 November 2023. 

Along with the latest declaration, an FSCA policy document was released containing explanatory notes, transitional details and plans for a crypto-asset regulatory and licensing framework.

The regulatory framework is continually evolving and the policy document was accompanied by a draft general exemption. Commentary is invited on the exemption, which is intended to help the transition of existing crypto-asset sector players to the new regime. 

More regulations are expected which are likely to prohibit collective investment schemes and pension funds from exposure to crypto assets. Derivative instruments or other securities that reference crypto assets as the underlying assets should also be excluded from these long-term savings vehicles.

Taming the wild west

There is a lot of uncertainty regarding cryptocurrency regulation. However, the SARB aims to develop a regulatory framework for crypto exchanges that will allow for cryptocurrency listing. The SARB has confirmed that it will enforce know-your-customer (KYC) requirements and, where applicable, submission of Suspicious Transaction Reports to the FIC. 

The cowboys who misuse cryptocurrency for illegal purposes must not be allowed to ruin the market for legitimate users. Cryptocurrency, originally a vehicle for investing, often speculatively, is now becoming an accepted form of payment. The businesses that accept crypto payments are still predominantly in the US, such as Microsoft, Paypal, Starbucks, AMC Theaters, and AT&T. But inevitably take-up of crypto will spread, just as alternative payment methods such as SnapScan and ApplePay have. Cryptocurrency has certain benefits that may make it particularly attractive to the South African environment, where there are still many unbanked people. Crypto is subject to fewer fees; you can make or receive payment wherever there is internet connectivity; and it is available to everyone, i.e. those who do not have access to financial services like banks and loans tend to have internet connections through mobile devices. Anyone with an internet connection can make and receive payments, borrow money, or access financial services wherever they are.

For more information

SD Law is a firm of experienced attorneys based in Cape Town, with offices in Johannesburg and Durban. If you want to know more about cryptocurrency, or need assistance with other digital concerns, including compliance with POPIA, cyberbullying and cybercrime, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

This entry was posted in Crypto currencyCybercrime and tagged in Cape Town LawyerJohannesburg lawyer.

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