TDIC alerts CDA members about copyright infringement risk

The Dentists Insurance Company has received and is currently working to resolve several claims against its policyholders related to the unauthorized use of proprietary software code on the policyholders’ dental practice websites.

Specifically, the claimant asserts the policyholders have committed copyright infringement by using, without permission, the claimant’s copyright-protected software that provides real-time online chat capability.

Sometimes referred to as live chat, this software is just one feature that practice owners might consider and purchase as part of a website development package designed to meet the needs of today’s health care consumers who are largely researching, communicating and making decisions online. Practices might use online chat software to respond quickly and in a conversational format to questions from current or potential patients.

“Long gone are the days when patients primarily chose their dentist based on provider directories, word-of-mouth or the Yellow Pages,” says TDSC Strategic Counselor Ashlee Adams. “Today, consumers are highly connected and able to research online reviews and ratings and peruse practice websites prior to making a dental or health care choice,” he adds.

When hiring a website developer, ask questions

Most practice owners are not designing their own practice websites. More commonly, they employ website developers to design websites with varying amounts of customization to meet the needs of their practice.

As website development can and frequently does involve the use of copyrighted material, TDIC and The Dentists Service Company advise practice owners who are hiring, planning to hire or currently employing a company or independent contractor for website development and management services to take extra steps to protect themselves from liability.

Such caution is particularly important given that the website developer may not own or have permission to use the copyrighted material, whether it be photographs or graphics, code for online chat software or a website theme.

If the web design company does not build certain features itself, it is using third-party companies to help provide that exceptional patient experience that the practice owner wishes to deliver.

First and foremost, practice owners should ensure they have a business associate agreement in place for any vendor that uses protected health information to provide services to a practice. (CDA members can download the CDA Practice Support resource titled “HIPAA Business Associate Agreement.”)

Additionally, TDSC Marketing Advisor Jessica Edgerton says practice owners should be aware and ask any web development company they are considering hiring or the web developer they are currently employing if they have proper licenses and permission to use all website features. These may include:

  • Website content copyright.
  • Licensing for images and videos.
  • Agreements with third-party companies for the use of integrated online patient forms that collect information related to, for example, health history or dental benefits; live chat software; and appointment scheduling.
  • Online review generation services. (These services help generate online reviews on Google, Healthgrades, Yelp, Facebook and similar websites.)

Practice owners should carefully review the service agreements with the web developers and seek advice from their personal attorney prior to retaining a web developer’s services. Ideally, a web developer should promise that it has all rights and licenses necessary to grant the practice owner the right to use and access the website and that the web developer will indemnify and defend the practice owner from any third-party infringement claims related to the services or the website. This may help to limit or even remove exposure for the practice owner.

“If the web developer does not have proper licenses or permission or is not able to provide a definitive answer to your questions, it may not be worth the risk for you to proceed with that relationship,” Edgerton adds.

Unauthorized use easily detected with today’s tools

Many companies use a tool that searches the internet for unauthorized use of photos, images and other copyrighted content by, for example, detecting watermarks within images. Often, when unauthorized use is detected, the owner of the copyrighted material will send a cease and desist letter with a demand of payment for the period of time that the unauthorized use has occurred.

CDA uses such a tool to help ensure the integrity of its website and subsidiary websites. Edgerton says that with tools like these, “anyone looking to copy content without permission is unlikely to get away with it.”

 TDIC’s Professional Liability Policy offers protection

Dentists insured with TDIC have coverage for defense and/or potential settlement of claims such as copyright infringement, which are classified as “advertising injuries” and are located under the Dental Business Liability section of TDIC’s Professional Liability Policy. The policy will provide coverage for advertising injuries as long as the policyholder’s alleged acts occurred within the policy period.

Learn more about protection through TDIC’s Professional Liability Policy.

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