Stewart McKelvey

SOCIAL NETWORKING SITES AND IP: FRIENDLY AND UNFRIENDLY ISSUES By Daniela Bassan his article explores the interaction of so- cial networking sites (SNS) with intellec- tual property (IP) rights. In particular, the treatment of copyright and trade-mark material on SNS is explored to identifying some of the key issues facing owners and users of IP in today's online social media. T What are Social Networking Sites (SNS)? SNS can be defi ned as digital platforms through which individuals or corporations publicly communi- cate information to other individuals or corporations. Examples of the most popular and well-traffi cked SNS include Facebook, Twitter, MySpace, LinkedIn and YouTube. Navigating the waters of SNS can be tricky, wheth- er from a personal or commercial perspective. The goal for business owners is to effectively utilize social networking tools in order to optimize marketing re- turns and performance while also ensuring that IP strategies underlying innovation, reputation, good- will, etc. are adequately protected. What IP Issues Arise on SNS? There are a multitude of IP issues that may be engaged by activities on SNS including: • The unauthorized uploading of musical or liter- ary works to SNS (e.g., original songs or lyrics); • The unauthorized use of registered or unregis- tered trade-marks in connection with commer- cial activities on SNS (e.g., promotion or sale of consumer goods); • The unauthorized transformation of musical or literary works on SNS (e.g., digital enhance- ments or modifi cations) which are substantially similar to the original work; • The unauthorized linking or transmission of musical or literary works between different SNS in order to reach different audiences; • The unauthorized posting of musical or literary works in a format which permits users to access substantial portions of the works on SNS; • The unauthorized association of one brand with another brand in connection with goods or ser- vices being offered on SNS; and • The unauthorized use of copyright material or trade-mark designs by non-profi t or volunteer organizations seeking to promote the availabil- ity of their services via SNS. What Legal Approaches are Used? There are a variety of approaches that may be used to address the situation where one's IP is being used without authorization on SNS. Generally speaking, the approaches range from "soft" ones (i.e., focus on fl exible IP licences without many restrictions) to "hard" ones (i.e., emphasis on strict enforcement and control of IP rights). Hard Approaches At the "hard" end of the scale, there are traditional litigation strategies directed at enforcement of IP rights through the courts or specialized tribunals. The targets of litigation may be individual users of SNS (if they can be identifi ed and located) or entities repre- senting the SNS themselves. There may be legislative, regulatory or contractual provisions which affect the ability to bring such litigation or determine the juris- diction in which such litigation could be conducted. While it is beyond the scope of this article to consider such provisions, it is worth noting some of the pros and cons associated with the litigation route. One advantage of not pursuing litigation may be the opportunity to benefi t from "free" advertising of an IP brand or investment by third parties engaging in SNS activities. Another advantage of staying out of court would be a savings of costs and resources which could be diverted to development of other SNS strategies (see below) to minimize one's IP risks. Contra, a lawsuit could send a strong message of deterrence to third parties, particularly in instances where the SNS activities are largely for-profi t and commercial in nature. A court action, if successful, could also serve as a strong precedent for any simi- lar disputes in the future. However, it is also possible that a message of heavy-handedness by an IP owner against an in- fringer could go "viral" on SNS and result in large- scale negative publicity, particularly in borderline infringement cases. This means that "hard" ap- proaches against IP infringement on SNS require careful assessment of all the circumstances and pos- sible consequences to one's brand or profi le. DOING BUSINESS IN ATLANTIC CANADA WINTER 2011 7

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