Stewart McKelvey

SOCIAL NETWORKING SITES AND IP: FRIENDLY AND UNFRIENDLY ISSUES Soft Approaches At the "soft" end of the scale, there are a variety of licensing options which may be effective to protect (or at least manage risk to) one's IP on SNS. A traditional licence would seek full protection of IP rights, digit- ally and otherwise. A typical IP licence would include, for example, payment terms, quality controls, owner- ship provisions, and limitations on modifi cations to IP. However, overly restrictive licence provisions may still prompt negative reaction from SNS users and could generate adverse publicity for the IP owner. A less traditional (and less restrictive) licence would be a creative commons licence. This type of licence is not based on protecting all legal rights and interests of the owner but, rather, enforces select or qualifi ed rights, such as allowing reproduction or transformation of the IP as long as there is acknowledgment given to the original owner of the IP. Related to the "soft" approach, however, is the need for monitoring and compliance systems to be put in place by the IP owner. That is, if an IP licence is issued for SNS activities or SNS users, the IP owner should ensure that the terms of the licence are respect- ed on an ongoing basis. Given the inherently public nature of many SNS activities, some aspects of mon- itoring and compliance may be easily tracked by the IP owner. For example, it should be apparent to the IP owner whether proper ownership credit is being given and whether quality standards are being met on the licensed SNS. Other aspects may be more challenging to track such as the extent of re-distribution or re- transmission of the IP to unlicensed third parties who have access to the SNS. At the same time, there may be technical solutions available to assist with tracking IP movement (from one user or site to another) on SNS. What Risk Management is Needed? There are a number of steps that can be taken to miti- gate or eliminate the risks posed by SNS to one's IP rights and interests: • Creating a portfolio of template agreements to au- thorize/license the use of IP on SNS; • Developing specifi c in-house policies to govern em- ployees' treatment of copyright, trade-marks, etc. in the context of email communications, Internet usage, and SNS activities; • Seeking advance clearance of copyright and trade- mark issues for all corporate materials to be pub- lished or distributed online, particularly those ac- cessible on or linked to SNS; • Establishing a system of monitoring and compli- ance for IP licences which have been issued to SNS users or entities; • Developing a self-contained system for selling and promoting goods or services through SNS (e.g., to ensure all IP is properly licensed and that jurisdictional issues are addressed in the event of IP disputes); and • Obtaining advance opinions on any signifi cant IP infringement issues identifi ed on SNS. The assistance of Michelle Chai, summer student 2011, is acknowledged and greatly appreciated in connection with an earlier version of this article. Daniela Bassan Halifax, NS 902.420.3354 dbassan@stewartmckelvey.com Stewart McKelvey proudly celebrates over twenty years of innovative leadership as Atlantic Canada's fi rst and largest regional law fi rm. With a distinguished heritage reaching back to Canada's confederation, our law fi rm has established an international reputation for generating results. More than 220 lawyers and 350 staff in our six locations have a single objective: the best results for our clients. Charlottetown, Prince Edward Island 65 Grafton Street, P.O. Box 2140 Charlottetown, PE, C1A 8B9 Telephone: 902.892.2485 Fax: 902.566.5283 charlottetown@stewartmckelvey.com Fredericton, New Brunswick Suite 600, Frederick Square, 77 Westmorland Street P.O. Box 730, Fredericton, NB, E3B 5B4 Telephone: 506.458.1970 Fax: 506.444.8974 fredericton@stewartmckelvey.com Halifax, Nova Scotia Suite 900, Purdy's Wharf Tower One 1959 Upper Water Street, P.O. Box 997, Halifax, NS B3J 2X2 Telephone: 902.420.3200 Fax: 902.420.1417 halifax@stewartmckelvey.com Moncton, New Brunswick Suite 601, Blue Cross Centre, 644 Main Street P.O. Box 28051, Moncton, NB, E1C 9N4 Telephone: 506.853.1970 Fax: 506.858.8454 moncton@stewartmckelvey.com Saint John, New Brunswick Suite 1000, Brunswick House, 44 Chipman Hill P.O. Box 7289, Postal Station A, Saint John, NB, E2L 4S6 Telephone: 506.632.1970 Fax: 506.652.1989 saint-john@stewartmckelvey.com St. John's, Newfoundland and Labrador Suite 1100, Cabot Place, 100 New Gower Street P.O. Box 5038, St. John's, NL, A1C 5V3 Telephone: 709.722.4270 Fax: 709.722.4565 st-johns@stewartmckelvey.com

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