When it comes to Intellectual Property (which we will refer to as “IP” in the future) there is a lot of law surrounding it. These issues every business is guaranteed to encounter at some point. This stands true especially when engaging with customers through social media. Many businesses rely on copying and pasting internet content onto their own online real estate. Pictures, audio and video files, documents, or even whole web pages are easy to copy and share. That is what most social media users are doing and social media platforms are relying on. Still, sharing original content created by others is usually in violation of the copyright laws. That is if we do not have explicit permission to do so. These laws are in place for a reason. They are meant to protect and therefore encourage and promote the continual and unhindered creation of original content. Intentionally or otherwise, associating our business with the trademarks of another can leave us to liability for infringement. To protect ourselves from said liabilities on social media, we need to understand several aspects of IP law. These we will cover in this article.
1. What is protected?
IP laws usually refer to patents, copyrights, trademarks and trade secrets. These are particularly important when it comes to social media. Worth noting, inventors with a new process or product that do not yet hold a patent should be very careful when sharing information. In that case, there is nothing stopping us from eventually ending on the wrong side of a patent dispute. Copyrights define a “protection of original works of authorship fixed in any tangible medium of expression, not known or later developed…” What it means is that copyright laws protect original content from being redistributed, or copied without the original author’s consent. Trademarks, like copyrights, give official ownership to the owner. But not all words, symbols or designs can qualify as a trademark. To do so, a trademark must be distinctive and not in any way similar to an already existing one. Also, it must not be deceiving. It is not required to register a trademark but it does have its advantages. Trademarks are designed to reward us for investing in the quality of our product or service by making these easily identifiable. For us to avoid infringing on these via social media we must avoid using foreign ones. Consumer confusion or dilution of any other famous trademark, owned by another company, is a sure indicator of such infringement.
2. Copyright and Social Media
Online giants like Facebook, Twitter, Instagram, etc. do allow posting material that could be copyrighted. The reason for this is that these portals do not claim ownership of that work, rather it is still retained by the owner. We sign certain agreements when posting any work on those sites. These agreements give the site a license to use said work. Unless differently agreed upon, these licenses are usually given without payment.
3. Fair use
We can, but so can others, use copyrighted material that does not have a license thanks to this doctrine. This is a controversial topic. It stands for the defense for use of copyrighted material for, among other things, criticism, comment, reporting, teaching, etc. There are four factors that must be considered in order for someone to use said work under fair use. First is the purpose and character of the use. It must not be in any way of commercial nature and must be for a nonprofit and/or educational purpose. Second is the nature of the copyrighted work itself. Third, the amount and substantiality of the portion used of the copyrighted work as a whole. Finally, the effect of the use upon the potential market and value of the work in question. In short, fair use includes using the material for commentary, search engines, criticism, comedy, research, and scholarship. On the other hand, using it for monetary gain without a license is not considered fair use.
4. Protecting our own content
The best way to protect our content from being wrongfully utilized by third parties is to not put it up on social media in the first place. By doing just that we automatically grant the license to our own intellectual property. Anyone can use it and view it, even though we still own it. To protect our content, we can include a copyright statement on the file in question. Our multimedia content might still be appropriated by a third party, that is not associated with the social media site. So, we must remain vigilant and keep track of possible violations. Furthermore, if any are discovered, complaints must be filed quickly and decisively. Failing to do so expeditiously could render us unable to gain support to our claims in a lawsuit, further down the road.
Using multimedia content on social media for online business is tricky these days. The law behind it is on point and will always catch up. If we are considering a new business idea that relies heavily on social media, we need to make sure we are not infringing on patents of others. Draft, circulate, and train employees to follow a carefully orchestrated social media policy. Regular training should be commonplace, so everyone is aware of what is contained within them. Of course, we can always mitigate risks of inciting the author of the content by providing links back to the original source.
David Koller is a passionate blogger and copywriter for Media Gurus, mainly interested in SEO and Digital Marketing.