Social Media and Intellectual Property (IP): Part I- Protection and Ownership
Social Media comes with a bundle of tools that differentiate it from traditional print and electronic media. Among others, two unique elements of Social Media are: Tools for sharing and dissemination of content and information across the world; and tools to communicate and exchange information. These two elements make Social Media a much more powerful weapon than traditional media.
Access to most social media platforms requires internet, of which there is no dearth in today’s context. It is estimated that 3.2 billion people have access to internet as of 2015. Out of these 3.2 billion, 2 billion people access internet on smart phones. Total mobile phone users are estimated to be 7.8 billion, and it is only a matter of time before many others move to smart phones. The more the internet and smart phone usage, the greater will be the integration of social media into humanity.
Today, we live in a world, where people prefer to connect, communicate and co-exist on social media. By merging social interactions, networks and communications, social media platforms have created online societies that are not bound or determined by physical presence. Also, each individual can be a part of multiple societies driven by different social institutions, organisations and systems.
A society is a web of social relationships, which are driven by interactions, exchanges and communications, among others. In such a set up, what role does IP have? How should a business protect, manage and strategize its IP assets in such a society? The question may be addressed from three perspectives:
Creation and Ownership;
Distribution and Dissemination; and
Enforcement and Risk Mitigation.
Creativity and Intellectual Property on Social Media
Intellectual Property protects products of the mind and intellect. Irrespective of how and where an intellectual product is created, it will be protected under the IP regime. Therefore, creations, inventions and ideas generated on Social Media will naturally get IP protection. The fact that they are created on Social Media will not make any difference.
Nature of Protection
The nature of protection will however depend on the nature of creation. A work of authorship like a photograph, art work, writing, video, etc., will be protected as a copyright; A representation used on Social Media including name, domain name, page name, etc., will be protectable as trade mark; A product with an aesthetic appeal can be protected as a design patent or industrial design; An App, tool, software, process, etc., can be protected as a patent; and Data, contacts, information, interactions, etc., may be protected as trade secrets.
The principles for protection of IP on Social Media do not differ from other media or contexts.
Forms of IP Protection
For illustration, let us assume that a person starts a book review business by the name, Literators. A Facebook page – www.Facebook.com/literators – is created and all reviews are shared on the page. The person also starts twitter and YouTube accounts in the name of ‘Literators,’ where short reviews and videos about each book reviewed are shared.
The name of the business, Literators, can be protected as a trade mark. Specific page url’s like – Facebook.com/literators, twitter.com/literators, etc., can get trade mark protection as well. The said url’s are considered equivalent to domain names, and therefore, trade mark protection will extend to them.
The reviews written on the Facebook page and video reviews posted on YouTube channel are works of authorship and get copyright protection as literary and cinematographic works. Of course, the assumption here is that the reviews are original and creative works. With respect to twitter, which has a limitation of 140 characters, the answer is not very straight forward though. Only messages on twitter that are highly creative will get protection as copyright protection does not normally extend to short phrases and slogans.
Copyright protection also extends to specific look and feel created on the Facebook and other relevant pages. Though basic structure is provided by the platform and creativity is restricted to only a few elements, Arrangement of creative works on the page, and overall look and feel may be the subject of copyright protection. Simply put, the look and feel created by placing data, images, content, etc. on a page can be protected under the copyright law as an artistic work.
Transactions on Social Media are not always very straight forward though. Content is often picked up online and posted. Sometimes, content is also modified or adapted before posting. While adapting or modifying content from a platform is normally permitted, and derivative work created can be the subject of copyright protection, the rights in the original work continue to vest with the first author.
Sometimes, Social Media platforms make tools that enable creation of new works available, and creating works using the said tools can also give rise to copyright protection. For example, copyright protection will vest in a video of Facebook events in the person creating the video, though the tool to make the video is provided by Facebook.
Social Media Apps, technologies and tools can be the subject of patent protection as well. Though extent of protection varies based on subject matter from country to country, such inventions are patentable. Many Social Media technologies and Apps have been patented. One example is a patent held by twitter on a method of detecting and managing groups. It is estimated that more than thirty thousand patents have been filed in USA on social networking related technologies and methods.
Social Media is also a repository of trade secrets of businesses. From linkedin contacts to visitor and liker details, Courts have in the last three years recognized trade secret protection for activities on social media platforms. For example, if appropriate steps are taken, linkedin connections, twitter followers, advertising metrics, business conversions, etc., can be subject of trade secret protection.
Ownership of Intellectual Property on Social Media
In line with the basic principle, the creator of intellectual property is the owner of such intellectual property on Social Media. Therefore, if a business creates intellectual property in the form of trademarks, copyrights, patents, industrial designs, or trade secrets on Facebook, Twitter, or YouTube, it becomes the owner of such intellectual property. If an employee creates some intellectual property on a company’s social media platform, the ownership of such intellectual property will be defined by general principles of contract of/for service, or employment agreement, if one exists.
What if an employee of a company creates IP on his Facebook or Twitter page, and such IP relates to the company. For example, if an employee gathers all comments about a company’s product and creates a collage on his Facebook page, who owns such IP? Assuming that the work was done on the employee’s personal time and there was no direction from the company to create such a collage, the employee would own such IP. Should the company then pay the employee to use the collage on its brochure? Would the answer be different if the creator of the collage is a third party, who has nothing to do with the company? The answers are not very straight forward, and depend on an array of factors.
More often than not, an IP created on social media may involve several users. Collaborative work may range from writing a book to a patentable invention. In such a case, who owns the IP? Can the initiator of the work or a collaborator use it? If the work is created on Facebook, can anyone on Facebook use it? Can Facebook use it?
The next post will delve into terms and conditions with respect to distribution and dissemination of IP on Social Media.
Other posts in this series:
- Social Media and Intellectual Property (IP): Part II – Distribution and Dissemination of Content
- Social Media and Intellectual Property (IP): Part III – Aggregation of Content
- Social Media and Intellectual Property (IP): Part IV – Taking Down Infringing Content
- Social Media and Intellectual Property (IP): Part V – Publicity Rights and Celebrity Rights
- Social Media and Intellectual Property (Part VI): Select Copyright Cases
- Social Media and IP (Part VII): Trade mark Cases
- Social Media and IP (Part VIII): Select Patent Cases
- Social Media and IP (Part IX): Select Publicity Rights Cases
Contributed by Social Media Law Team of BananaIP
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