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Tips to protect IP on social media

27 April 2016

In honour of World IP Day on 26 April, Andrew Flaxman and Caroline Day, from Haseltine Lake, run through tips for protecting your IP.

Shutterstock image

Social media has changed the way a company’s IP is managed dramatically. All the rules of engagement with potential customers, colleagues and competitors have been turned on their head, with everyone now a potential journalist and publisher. 

This seismic shift in the culture of how businesses communicate has left the legal support system struggling to evolve and adapt at a rate rapid enough to keep up with the developments in social media.

The sheer amount of content that is uploaded to the internet, the speed at which it is published and the enormous number of people who can be reached on a global basis compounds these challenges further for owners of IP rights who can be exposed, unknowingly or otherwise, to liability for breach of these rights.

As a starting point, below are some of our top tips for protecting your IP on social media:

1) Copyright is perhaps the most high-profile issue concerning intellectual property and social media and it will likely remain that way. It is important to be conscious of the potential to infringe the copyright of other people online as well as being vigilant about protecting the copyright of your own works. With social media apps, particularly image sharing sites such as Instagram, copying and sharing other users’ photos is particularly easy. However, it is usually the case there is copyright in the image and the owner of the copyright is entitled to have a say in how and where the image is reproduced. For example, they may want to prevent reproduction altogether, or may allow reproduction on the condition that they are properly credited. Therefore, the rights and wishes of the original owner should always be determined before deciding to publish an image you do not own. We urge designers to carefully check the terms and conditions of each of the sites of which you are members to understand what rights you hold and to ensure you know where you stand if you discover that one of your images has been used in a way you were not expecting.

2) Social media activity is a great way to showcase and grow a brand. However, the use of social media also exposes companies to potential liability for trade mark infringement if another company or brand owner considers that your actions online are negatively impacting or diluting its trade marks. If you or any of your team share a trade mark owner’s posts, or comment on a trade mark owner’s photos, it is important to ensure that all trade mark rights are being respected and that terms of use policies are being followed appropriately.

Caroline Day

3) Social media is, by its definition, social, and asking your fans or followers to submit their own content to your channels is part and parcel of developing a social media audience. However, do consider who then owns that submitted content. The possibilities range from the user retaining full ownership to the user transferring ownership completely to you. Although claiming ownership of the content gives you more flexibility in how you can use it (design ideas for a solution to a client’s problem, for example), it also increases the risk of liability for defamation and intellectual property right infringement accusations.

4) Decide who “owns” your social media audiences. The number of Facebook fans, LinkedIn connections or Twitter followers that a company has earned has become increasingly valuable as a marketing tool. If a company’s employees’ personal social media audiences are directly linked to the company, then it is critical that the company is clear about who owns the channel (and therefore the audience), should an employee leave the company. This should be explained clearly in the corporate social media guidelines, as should explaining the appropriate use of such accounts and the extent to which employees are permitted to use their personal social media accounts during office hours.

5) As social media use has become part of everyday life, the risk of corporate accounts being hacked and company executives being impersonated become more and more likely. It is vital to develop an internal monitoring system that works for your organisation so that someone is responsible for keeping track of what is being said about your brand and your products on social media with a particular eye on potential IP infringement.

6) Social media content can be used as evidence in the event of litigation. No matter what the litigation issue, it’s important that you are prepared to both ask for, and hand over, social media posts as evidence. It is also worth being aware that a user's privacy settings will not prevent a post from being classified as evidence either. Anything potentially relevant to a legal case, regardless of whether or not it can be viewed publicly, may be used as evidence. It is important to make your team aware that your company blog, your LinkedIn profile or even a personal Facebook page can all be called upon as evidence. 

7) Trade secrets are a valuable business asset, but only if they remain secret! It is critical for companies to have policies and procedures in place to prevent employees from revealing confidential information via social media, whether inadvertently or maliciously. There are six factors that determine whether information constitutes a trade secret:

• the extent to which the trade secret of a company is known outside the company

• the extent to which the trade secret is known by employees and others inside company

Andrew Flaxman

• measures taken by the company to protect the secrecy of the information

• the value of the trade secret to the company and to competitors

• time, effort and money expended in development of the information

• ease or difficulty by which the information can be properly acquired or duplicated by others

There are many examples of trade secrets being breached on social media – don’t let this happen to your business!  Don’t forget too that revealing your inventions too soon may harm your chances of patenting your ideas. 

Andrew Flaxman and Caroline Day are both Associates at major European intellectual property firm, Haseltine Lake.

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