Issue 84, Autumn 2021, Fineprint
Social media – intellectual property owner’s friend or foe?
Treat your friend as if he might become an enemy (Publilius Syrus, 85-43 BC)
Social media is a very powerful marketing tool. If used and managed properly, platforms like Facebook, Instagram and Twitter can be a brand’s best friend.
If not managed properly, however, social media platforms can be a brand’s enemy. They can, at least temporarily, impede growth and — in the most extreme circumstances — cause significant damage to brand reputation.
In the context of intellectual property (IP) rights, whether social media platforms are your friend or foe depends on two factors:
- How you manage the IP rights of your own business, and
- How you treat the rights of others.
In this article, we focus on the two IP rights that feature most prominently in social media marketing – copyright and trade marks – and how these should be managed on social media.
Copyright – be vigilant
The IP right that is probably the most often complained about in social media is copyright.
Copyright rights arise automatically on the creation of an original copyright work. ‘Original’ means the product of more than minimal time, labour, skill and judgement and not copied from someone else’s work; it doesn’t mean ‘brand new’ or ‘novel’. The threshold to achieve ‘original’ status is low.
Copyright works include logos, photos, images, paintings, illustrations, sound recordings and films — all of which are used extensively on social media.
Quite often, copyright works are used on social media without a copyright owner’s permission. Businesses — from sole traders to large corporates — should be vigilant to ensure their copyright rights are not being infringed.
If you see unauthorised use of your copyright material on a social media platform, you should contact the infringer immediately asking them to stop and remove the posts.
If this is unsuccessful, or you are not comfortable with contacting the infringer directly, you should ask your IP specialist to send a strongly worded letter. If there is no response or action to that letter, you can make a formal complaint to the platform on which your copyright is being infringed.
The online complaint forms used by Facebook and Instagram, for example, require you to provide them with details of your copyright work (what type it is — photo, video, artwork, software, logo, etc.) and links to where the copyright work can be publicly seen. If the copyright work isn’t viewable online then you have to describe the work in detail or attach an authorised example. Without this information, the platforms cannot assess your complaint.
In cases involving photos, videos, artwork and logos businesses should be able to readily provide evidence of their rights to the platforms. In other cases, it could be more difficult to describe the copyright work or provide the requisite evidence.
It may be that you don’t want to provide a copy of your copyright work to Facebook; for example, if your complaint relates to infringement of copyright in confidential product drawings by a New Zealand competitor. In this case, the last thing you want to do is disclose your copyright works. However, enforcing your rights directly against an infringer to avoid the requirements of a formal complaint process may be difficult as the infringer could be based overseas or may not be locatable at all.
The bottom line is that if you can’t meet the platform’s requirements to prove copyright infringement you risk your complaint not being upheld and the unauthorised use of copyright material continuing.
Trade marks — be registered
Rights in a trade mark can be acquired through registration and/or use.
In the social media arena, registration of your trade mark is particularly important. Enforcing rights in unregistered trade marks on social media platforms is extremely difficult as these platforms do not recognise unregistered trade mark rights.
As a general rule, a business’s principal trade mark/s — usually a name and/or logo — should be registered for a number of reasons; the two main ones being:
- It is the best form of protection against unauthorised use of your trade mark. As registration is a matter of public record, anyone thinking of registering or using an identical or similar trade mark to yours can easily check to see if they can (or cannot), and
- It provides a readily identifiable, nationally-recognised business asset — unlike the situation with unregistered trade marks where owners must provide evidence of use to establish their rights and where rights are often locally or regionally limited in scope.
A registered trade mark not only gives your trade mark better IP protection, but it is also more attractive to investors and potential buyers of your business than an unregistered trade mark.
If you see unauthorised use of your trade mark on a social media platform, then as with copyright infringement you should contact the infringer immediately asking them to remove the references or posts.
If this is unsuccessful, or you are not comfortable with contacting the infringer directly, then again you should ask your IP specialist to send a strongly worded letter. If that doesn’t work, make a formal complaint to the platform on which the infringement took place.
The online complaint form used by Facebook and Instagram, for example, asks you to provide registration details such as the country or countries in which your trade mark is registered, its registration number and the categories of goods and/or services covered by your registration. You are also asked to upload a scanned copy of your trade mark registration certificate/s or a screenshot of the registration on the website or database of the applicable national or community IP office/s; in New Zealand, this is the Intellectual Property Office of New Zealand. If your trade mark is not registered, you cannot complete the form.
The need for your trade mark to be registered is reinforced, for example, by Facebook’s Commerce & Ads IP Tool which gives users the ability to search ads, marketplace posts and group sale posts and report content that the user identifies as infringing their IP rights. Access to the Tool is not automatic though.
IP rights owners must apply to gain access using Facebook’s online form — which requests much of the same information as the trade mark complaint form.
In short, if you don’t have a registered trade mark you will face an uphill battle convincing a social media platform to uphold your complaint.
If you actively use social media to market and promote your business, do treat social media cautiously. If you haven’t already done so, register your principal trade marks and maintain a vigilant eye for any infringement of your copyright rights.
Copyright infringement by former President Trump’s team
An example of copyright infringement that hit the news in mid-2020 was the use on Twitter of a cover of Linkin Park’s 2002 song ‘In the End’ in a campaign advertisement released by former President Trump’s team. The video advertisement, originally posted by White House social media director Dan Scavino, was later retweeted by the former president.
On 18 July 2020, Twitter removed the advertisement following a formal takedown request by Machine Shop Entertainment, Linkin Park’s business arm and management company.
Cyber security 101 for business
Some practical tips
You arrive at work to find that files with sensitive commercial and client information held on your computers have been hacked. This is the situation the Reserve Bank of New Zealand (RBNZ) found itself in earlier this year. In January, the RBNZ encountered a data breach of its global file-sharing application Accellion FTA. This application was once used by the RBNZ and its stakeholders to share personal and commercially-sensitive information.
It is alarming to contemplate having to negotiate with hackers who have stolen your business information for ransom. All businesses can learn from the RBNZ’s incident to increase awareness of cyber security and minimise the risk of a hacker attack. Prevention is the best solution.
Install antivirus software
Antivirus software helps detect, quarantine and remove malicious software from computers. Although Windows 10 comes with Windows Defender built-in, this only provides a baseline level of protection. Hackers are constantly inventing new viruses and threats, and it’s important to have up-to-date antivirus software. It’s worth paying for reputable antivirus software; free antivirus software programs can be fake and/or harbour viruses.
Use a virtual private network (VPN)
If you connect a device to free public Wi-Fi networks at, say, local cafes, you’re running a business risk. If hackers access that network, they can see everything you do on the internet, including logins and passwords. A VPN helps to protect you from these risks. A VPN provides online privacy, anonymity and security by creating a private network connection. Like antivirus software, it is worth paying for VPN software to ensure you receive a higher quality product.
Implement patch management
Patch management ensures that all operating systems and software on your business computers are up-to-date so the likelihood of a known security risk being exploited on your computers is reduced.
Although it is tempting to delay notifications that say ‘Windows needs to restart your computer to install the latest update’, installing those updates is critical to maintain security.
Older operating systems such as Windows 7 are easier to hack than the later version (Windows 10) because Microsoft no longer provides updates and support has ended. As a result, there are known security vulnerabilities which have not been fixed.
Regularly back up data
Your IT systems, including all data, should be backed up to a secure location, so that business can be restored quickly if it is cyber-attacked or there is another data loss event. Typically backup and business continuity plans are developed to ensure downtime is minimised. Often this will include backups taken at multiple times on any given day and at day end, and stored in multiple locations. Backups should be held for a reasonable period to avoid replicating viruses or other harmful codes.
Implement email filtering system
Emails are a big threat to cyber security. An email can purport to be from a genuine company but have fake credentials, could have been compromised by a hacker or have malicious attachments.
Downloading such emails could give a virus access to your computer. It is advisable to prevent programs from being run inside email attachments without permission. Email filtering system features are available with some Microsoft products but you may need to ensure these are turned on.