Canadian Lawyer InHouse

SEPTEMBER 2016 48 INHOUSE SEPTEMBER 2016 48 IN INHO HOUS USE an agreement with a company to post an en- tire 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 rev- enue 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 Face- book today, we're able to notify Facebook immediately via a form," Felicissimo ex- plains. "If Instant Articles become the thing, we're not sure how that's going to work." Mark Hayes, an IP lawyer based in To- ronto, calls this the "cloudifi cation" of me- dia. "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 loca- tion, because it's allocated based on what's effi cient 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 re- quired," he says. Dan Pollack, a Toronto-based lawyer who has worked as part-time in-house counsel in the past, agreed. He says some- times the social services wind up with the bigger end of the stick, citing a case in which there was a public outcry over Ins- tagram'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 be- cause 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 com- panies 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 di- rectly to social media, though, there may be an imbalance between the copyright protec- tion capabilities of some fi rms versus others. "For the smaller rights holder, it's a very diffi cult battle," says Paul Lomic, a Toron- to-based lawyer and the author of Social Media and Internet Law: Forms and Prec- edents. "On some level, if there is a copy- right issue on Facebook, the quickest and most effective is through Facebook's poli- cies, which I think are fairly effi cient. "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 compa- nies use technology to create a sort of digital "fi ngerprint" 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 so- cial media platform and see what the mech- anism is for violations of intellectual prop- erty. 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 im- age fi rm Masterfi le, 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 in- fringing on another fi rm's. Hayes says he's been consulted numerous times by fi rms whose employees are using "free" images or text with a Creative Commons licence, not realizing it doesn't cover the use the fi rm is putting it towards. "In general, for most companies, the big- gest risk is posting infringing content, par- ticularly 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 T he only thing most social media services share in common is that they want to boost ad revenue, and that they will do almost anything possible to make audiences more immersed in their own digital properties. Here's a high-level comparison of what's currently on offer, and which may come up in your next internal discussion. FACEBOOK INSTANT ARTICLES: Rather than merely drive social media users back to their own properties, Facebook's Instant Articles are a form of "native" advertising that ensures content will end up in a target audience's newsfeed. SNAPCHAT DISCOVER: A service whereby users can post pictures that self-destruct after a short period of time, Snapchat has offered Discover as a way for brands like CNN to have content hosted directly. Snapchat is currently in talks with Hollywood studios to add fi lm and TV shows. TWITTER: The microblogging service has been working with Google to offer "accelerated mobile pages," which speeds up page loading times but keeps content on the creator's own site. LINKEDIN POSTS: Anyone from the CEO to an intern now has the ability to create and post their thoughts directly to their resumé-like profi le — rather than a blog their company owns. MEDIUM.COM: Launched by one of the co-founders of Twitter, the free publishing tool is attracting U.S. politicians and business leaders as a way of getting their thoughts out there without trying to land on a newspaper's op-ed section. On Social Media A Quick Guide To Where Content Lives (Directly)

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