Points to Note When Ordering the Production of Hospital Reservation Sites and Referral Media Sites

There may be cases where hospitals and clinics consider setting up and operating a media site aimed at directing traffic to their own dedicated reservation site or reservation page. In such cases, it is common to outsource the development of such sites to IT companies, and to continue to outsource their operation after completion.

However, as with any kind of ‘outsourcing’, if you choose to ‘outsource everything in a way that the content is close to a black box’, there is a possibility that you may suffer disadvantages in the medium to long term.

We will explain the points to be careful about when outsourcing the development and operation of such sites.

Acquiring a Unique Domain and the Issue of ‘Ownership’

Utilizing a Dedicated Unique Domain

Reservation sites exclusive to your clinic, or media sites aimed at directing traffic to reservation pages, can operate using a unique domain separate from the official website of the hospital or clinic itself. For example, the official website of a clinic might be ‘Monolith-clinic.jp’, but a media site related to medical hair removal could operate separately under a unique domain like ‘datsumou-info.com’.

The Risks of Entrusting Domain Registration to a Website Development Company

When acquiring a unique domain, you can entrust the registration to an IT company that specializes in website development. However, even unique domains require renewal procedures, and if the website development company neglects to renew the domain registration, you will no longer be able to operate a website using that domain. Furthermore, if the renewal deadline is missed, the original user loses ownership of the domain, which may be auctioned off after a certain period and acquired by a third party, potentially leading to misuse such as phishing scams.

Moreover, since the registrant of the domain essentially becomes the owner of that domain, if the website development company registers the domain on behalf of the business, the website development company becomes the owner of the unique domain used on the website. Therefore, if the relationship with the website development company deteriorates, there is a possibility that the website development company may allow a competing clinic to use the domain or transfer it to them.

Potential Deterioration of Relationship with Site Development Company and Contract Negotiations

It is, of course, unlikely that you would initially anticipate a deterioration in your relationship with the site development company. However, after having a site developed by IT company A under conditions such as “site development for X ten thousand yen, then 50,000 yen per month for operation, renewed every 12 months”, you might be approached at renewal time with a request like “we’d like to increase the monthly fee to 100,000 yen next year due to higher than expected maintenance costs”. In such a case, it would be desirable to at least have the option to switch the maintenance contract to another IT company, B. If the ownership of the domain lies with IT company A, this option disappears, and you may be forced to accept unfavorable contract renewal terms, potentially leading to problems.

As a countermeasure, it is safer for the operator of the website to register the unique domain themselves, or if they entrust the registration to someone else, to ensure that the registrant information and registrar account belong to the operator. There is also the option of receiving a transfer of domain ownership from the website development company. However, if a situation arises where the relationship with the website development company deteriorates, it may be difficult to obtain their consent to transfer the domain, making this an unviable solution.

Related article: What is the mechanism for dispute resolution regarding domain transfer requests?[ja]

Issues with Copyright of Programs and Content

Copyright of Programs on Reservation Sites

The source code of reservation systems and the like may be protected under the “Japanese Copyright Law” (Article 10, Paragraph 1, Item 9) as a “program work”. Specifically, without the permission of the copyright holder of the source code, it is not allowed to copy it to create an identical website or to modify it arbitrarily for improvement. This would infringe on the right of reproduction (Article 21 of the Copyright Law) and the right of adaptation (Article 27 of the same law).

The copyright of the website’s source code belongs to the website production company, the author of the code. If you leave the copyright of the website’s source code to the production company, you may face inconveniences such as not being able to freely renew the website. Therefore, it is important to transfer the copyright of the source code from the website production company when commissioning the production of the website. Thus, a clause to receive the transfer of copyright from the website production company will be included in the contract for commissioning the production.

Related article: Who owns the copyright of the program’s source code?[ja]

Provisions on Copyright Transfer and Author’s Moral Rights

When establishing a copyright transfer clause, it is necessary to pay attention to the handling of the right of adaptation (Article 27 of the Copyright Law) and the right to use derivative works (Article 28 of the same law). Under the Copyright Law, if these rights are not specifically stipulated in the contract, they are presumed to be reserved to the transferor (Article 61, Paragraph 2 of the same law). In other words, even if it is stipulated that “the copyright related to the source code will be transferred from Party B to Party A”, the rights related to derivative works and adaptations are not transferred. Therefore, it must be specifically stated that “the copyright related to the source code (including the rights under Articles 27 and 28 of the Copyright Law) will be transferred from Party B to Party A”.

Also, attention must be paid to the handling of author’s moral rights. Author’s moral rights are rights that exclusively belong to the author and cannot be transferred, unlike the property right of copyright (Article 59 of the Copyright Law). Therefore, even if you receive the transfer of the copyright of the source code, you may still be subject to the exercise of the author’s moral rights by the author. For example, when renewing a website, it is conceivable that a request for injunction (Article 112 of the same law) may be made based on the right of integrity, one of the author’s moral rights (Article 20 of the same law). Therefore, it is necessary to establish a non-exercise clause for the author’s moral rights, such as “Party B will not exercise the author’s moral rights against Party A”.

Copyright of Articles within Media Sites

Furthermore, the articles that make up the content of a media site are protected under the Copyright Law as “literary works” (Article 10, Paragraph 1, Item 1 of the Copyright Law). If the copyright of the articles on a media site is left to the author, it may cause inconvenience, such as not being able to modify the articles and update information without permission.

Particularly problematic is when a maintenance contract or similar agreement ends. As with the above-mentioned domain, if the relationship with the website production company deteriorates and the company allows or transfers the domain to a competing clinic, there is a risk that articles that were supposed to be created for your clinic may be used to direct traffic to a competing clinic.

Therefore, when commissioning the production or writing of a media site, it is necessary to clearly state in the contract that the copyright of the articles will be transferred from the author.

Summary: The Importance of Contracts When Ordering Reservation Systems and Referral Sites

As such, when outsourcing the creation of clinic-related sites, such as reservation sites and referral media, it is important to determine what kind of contract you will enter into with the IT company that will be the website developer. At that time, it is necessary to thoroughly examine who will own the ‘rights’ that make up the site, such as domain rights and copyrights, and what kind of risks this will pose in the future. It would be advisable to consider consulting with a law firm that has knowledge and experience in these contractual relationships.

Introduction to Our Firm’s Measures

Monolith Law Office is a legal office with high expertise in both IT, particularly the internet, and law. When entrusting the development and maintenance of systems, the content of the contract to be created is crucial. Our firm handles the creation and review of contracts for various cases, from Tokyo Stock Exchange-listed companies to venture businesses. For more details, please refer to the information below.

Areas of practice at Monolith Law Office: System Development Related Legal Affairs[ja]