Whose content is it anyway?

”Please copy and paste this as your status: I declare that my rights are attached to all my personal data, drawings, paintings, photos, video, texts etc. published on my profile and my page.Those who read this text can do a copy/paste on their Facebook wall. This will allow them to place themselves under the protection of copyright.”

The above message, or variations on it, started appearing on Facebook more than a year ago, and only the social media service itself could tell you how widely it circulated. Where once there were chain letters, now there are chain status updates. Of course, any lawyer will immediately recognize the disclaimer as useless, given that opting into something like Facebook puts users under a completely different set of rights and obligations.

Before you laugh, though, take a good look at how copyrighted material is being used on social media and it’s clear even highly experienced corporate counsel might wish they could slap up a pre-emptive protection notice of their own.

Ever since the likes of Facebook, Twitter, Snapchat and other services achieved a scale and online reach unthinkable to traditional newspapers and magazines, social media has become a key means of content distribution. For a while, it looked like it was simply a matter of writing a catchy title, cutting and pasting a link back to the organization’s site and waiting for the online traffic to grow.

More recently, however, the major social media players are encouraging much more sophisticated forms of user-generated content that could lead to widespread copyright infringement. In many cases, they are also encouraging firms — and not just media entities — to go beyond linking and having their content hosted directly on their own platforms. The challenge of monitoring, managing and following up on copyright violation could take off faster than the most viral cat video.

“They want to be the content providers,” says David Felicissimo, general counsel at Montreal-based Valnet Inc., which publishes sites such as ScreenRant and TheRichest.com. “We know the goal is not to let users leave Facebook, but at the same time we have to think about what that means for us as a business. We’re all looking at it with a bit of hesitation.”

Already, Felicissimo employs a “relationship manager,” who spends 25 per cent of her time dealing with content theft. In other words, she looks at how Valnet’s content gets duplicated onto other sites, whether it’s an article posted to someone else’s blog or one of its videos uploaded to a rogue firm’s YouTube channel. Felicissimo said the employee in question may have to send takedown notices, reach out to the likes of Facebook for help or perform other kinds of followup more than 40 times a day.

This isn’t just an issue for media companies, says Scott Mitchell, associate general counsel at Nissan Canada.

“What used to be a part of one person’s job has now grown into a full-time job, often for more than one person,” he says. “Given the number of media, ensuring a consistent message is also quite challenging and requires great teamwork and communication across many business functions.”


Here’s where it gets really complicated, though: Facebook has introduced a service called “Instant Articles,” whereby it strikes an agreement with a company to post an entire article directly on its site, rather than merely linking. Of course, this involves a legal agreement that would give the creator of the content a portion of advertising revenue or some other form of value, but it may make the onus of protecting intellectual property all the  greater.

“If someone posts our content on Facebook today, we’re able to notify Facebook immediately via a form,” Felicissimo explains. “If Instant Articles become the thing, we’re not sure how that’s going to work.”

Mark Hayes, an IP lawyer based in Toronto, calls this the “cloudification” of media. “There is storage and management of content in multiple jurisdictions,” he says. “The clients are not even knowing where the jurisdictions are. They won’t guarantee your data will be in any one particular location, because it’s allocated based on what’s efficient for the business.”

Mitchell suggests a lot of the headaches could be avoided if in-house counsel are consulted earlier in the process.

“It also gets the business people in the habit of contacting the legal department so we are able to determine whether and, if so, to what extent, our involvement is required,” he says.

Dan Pollack, a Toronto-based lawyer who has worked as part-time in-house counsel in the past, agreed. He says sometimes the social services wind up with the bigger end of the stick, citing a case in which there was a public outcry over Instagram’s terms and conditions that allowed the Facebook-owned service to continue using its customers’ photos for promotions or other purposes even after a user deleted them (the company has since changed its policies).

“They can implement their terms because you’re at their mercy. You need them to get your message out,” he says. “I wouldn’t be surprised if they asked for more as they gained more power.”

This isn’t just an issue for publishing companies like Valnet. It could be argued that any company that needs to market itself using something other than billboards and TV ads is also a “media company” of some kind and may be likely to use social services in order to get in front of the right audience. As content gets wedded more directly to social media, though, there may be an imbalance between the copyright protection capabilities of some firms versus others.

“For the smaller rights holder, it’s a very difficult battle,” says Paul Lomic, a Toronto-based lawyer and the author of Social Media and Internet Law: Forms and Precedents. “On some level, if there is a copyright issue on Facebook, the quickest and most effective is through Facebook’s policies, which I think are fairly efficient. “The challenge is Facebook has many users — if you’re a smaller rights holder and you have content that’s popular, it could be tough to keep track of that.”

Unlike the print era, the time to react has never been shorter, Lomic added. The challenge of the digital world is how easily and quickly content can be ripped off and disseminated, generating millions of views for a single video or article. Some companies use technology to create a sort of digital “fingerprint” for an image that allows them to keep tabs on it in an automated way, but even if you detect a violation, resolving it is an art of its own.

“You can ask the person to take it down — that can be effective,” Lomic says. “If that doesn’t work or if the person feels it isn’t appropriate, you have to go to the social media platform and see what the mechanism is for violations of intellectual property. But platforms will have broad policies — maybe it’s a copyright issue, but maybe it’s also a trademark issue. There could be bullying or harassment.”

Pollack, whose clients include stock image firm Masterfile, raises another issue: that companies may not only struggle to protect their own copyright on social media but to ensure their own employees aren’t infringing on another firm’s. Hayes says he’s been consulted numerous times by firms whose employees are using “free” images or text with a Creative Commons licence, not realizing it doesn’t cover the use the firm is putting it towards.

“In general, for most companies, the biggest risk is posting infringing content, particularly images, without knowing they’re doing that,” says Pollack, suggesting in-house counsel needs to train the marketing team on what they can and cannot do. “In our personal lives, we get used to posting something funny or cool. No one’s going to care and you’re not going to get a nasty letter from the rights owner. The same type of conduct creates risk in a commercial context. It’s not a free-for-all and it’s really important to implement some kind of formal process.
In marketing, they are often large team involved who may not be very familiar with IP and copyright law.”

The question is, what law are we really talking about? In most cases, social media companies are not Canadian-owned or operated and what tends to inform their policies and procedures is the Digital Millennium Copyright Act. Unlike Canada, whose “notice and notice” regime lets copyright owners send a notice about infringement to an Internet service provider who then passes it on to the party allegedly infringing, the DMCA essentially obligates third parties to take down infringing content.

“People forget copyright is a very national right,” Hayes says. “Each justification has different rules in respect to ownership [and] originality, but these days the ways that jurisdictions are diverging are generally in terms of user rights — what types of use can be made of copyright without consent or compensation to the owner? That varies widely, even between Canada and the U.S.”

“As Canadian counsel, you cannot advise on U.S. law,” Lomic says, “but what you can do is if the platform is in Canada and there is an infringement, you can assist them in using the policies of the company that’s operating in Canada in taking down content that is infringing Canadian copyright laws.”

Pollack added that even social chat services such as Kik, which was born out of Waterloo, Ont., tend to cover their bases by taking down copyrighted material quickly once they’re contacted. “I have yet to see a large-scale platform that doesn’t have some kind of DMCA process,” he says.

Like it or not, social media is not going away any time soon, and since many of them are still searching for sustainable revenue streams, that means in-house counsel may have to stay agile in helping their companies navigate the intellectual property risks.

“The challenge is that social media is always evolving,” Lomic says. “There are so many new ways in these platforms to disseminate information, and they’re incredibly creative about doing it. The law is always a couple of steps behind the technology.”

Hayes agreed. “It’s incumbent on in-house counsel not to look at the statutes to try and protect themselves,” he says, “but to understand what kind of protective measures — in terms of caution and encryption — can be used to protect your content outside of the remedies within the copyright system.”