Canadian Lawyer InHouse

September 2016

Legal news and trends for Canadian in-house counsel and c-suite executives

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49 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER 2016 care and you're not going to get a nasty let- ter from the rights owner. The same type of conduct creates risk in a commercial con- text. It's not a free-for-all and it's really im- portant 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 op- erated and what tends to inform their poli- cies and procedures is the Digital Millen- nium Copyright Act. Unlike Canada, whose "notice and notice" regime lets copyright owners send a notice about infringement to an Internet service provider who then pass- es it on to the party allegedly infringing, the DMCA essentially obligates third parties to take down infringing content. "People forget copyright is a very nation- al right," Hayes says. "Each justifi cation 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 op- erating in Canada in taking down content that is infringing Canadian copyright laws." Pollack added that even social chat ser- vices 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 al- ways evolving," Lomic says. "There are so many new ways in these platforms to dis- seminate information, and they're incredi- bly 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 under- stand 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." IH In general, for most companies, the biggest risk is posting infringing content, particularly images, without knowing they're doing that. DAN POLLACK, Dan Pollack Law Right-sized Thinking ® • 1-800-323-3781 • pallettvalo.com Not too big. Not too small. We are a law firm that combines experience, leadership and teamwork. We align flexibility with pragmatism. We have an innate appreciation for your unique challenges. If this sounds like the right fit for you, you've discovered Right-sized Thinking®. Contact us today. Untitled-2 1 2016-08-05 10:50 AM PallettValo_IH_Sep_16.indd 1 2016-08-08 9:33 AM

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