Intellectual property (IP) is simply “creations of the mind”(WIPO,2004). This includes inventions; literary and artistic works and symbols, names, and images used in commerce. The rights arising from intellectual property allow the owners of such property and those licensed by them their exclusive rights and benefit.
The rise and growth of social media has opened up unprecedented avenues for IP rights infringements. The basic rule of intellectual property is that the owner and licensee of such property have the exclusive right to such property. However, social media by definition is a ‘collection of websites and applications that are designed to allow people to share content quickly, efficiently, and in real-time’ (Hudson, 2020). This presents a copyright problem from the jump. The sites are built to allow users to share and re-share content but when does “re-sharing” infringe IP rights?
Most social media sites such as Twitter, Instagram and Facebook address copyright in their terms of service directing users to share only content that they’ve created or have the right to share. The sites reserve the right to remove content that violates these terms. The aforementioned “right to share” is gained by permission or license issued by the copyright holder.
What constitutes permission or license
Permission can be express or implied. Express permission can easily be communicated through direct messages, comment sections, emails, etc provided that there is a record of it. Express permission must also include the parameters of the use of the content.
Implied permission on the other hand can be granted in numerous forms most commonly being Words such as “re-share” “open letter”; the use of a specific hashtag that is associated with a brand campaign and some may argue that permission may be issued through a ‘tag’. Even though permission is given, it is best practice to attribute the work to the owner.
Exceptions to copyright: There are exceptions to the exclusive use of copyright. Key among them, for this article, being “fair dealing” for scientific research, private use, criticism or review, or the reporting of current events.
In summary, copyright is violated on social media when works are shared by unauthorized users for commercial use.
Apart from copyright infringement, another IP issue that arises in social media is Name squatting. Name squatting is when a third party registers a user name that is similar or close to that of a known brand in bad faith. The intention is either to pass themselves off as a known brand or to hold the user name then sell it to the brand at a premium. This is a trademark violation and is criminal in Kenya according to section 28 of the Computer Misuse and Cyber Crimes Act (no. 5 of 2018)
Your rights have been infringed now what?
- Report the infringement to the site: Social media sites allow you to report IP infringements. As they retain the right to remove content, such content can be pulled down in the case of copyright and a review of the user name in cases of squatting.
- Direct communication to the infringer asking that the post be pulled down and/or compensation for the use of the copyrighted content.
- Issuance of cease and desist letters. These are letter issued by lawyers demanding that the infringement stop and notifying of court action if the infringement continues.
- Court action for damages.