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Protect you Rights and Avoid Liability! Current Developments and Major Implications for IP Legal Guidelines in Advertising
 

Protect you Rights and Avoid Liability! Current Developments and Major Implications for IP Legal Guidelines in Advertising

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In this presentation, FMC's Margot Patterson discusses current developments and major implications for IP legal guidelines in advertising, including: ...

In this presentation, FMC's Margot Patterson discusses current developments and major implications for IP legal guidelines in advertising, including:
1. Changing Copyright Rules: User Generated Content
2. How Social Media is changing your marketing practices and how you protect your brand
3. Yours, Mine and Ours: Best practices for third-party content (partners & consumers)

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    Protect you Rights and Avoid Liability! Current Developments and Major Implications for IP Legal Guidelines in Advertising Protect you Rights and Avoid Liability! Current Developments and Major Implications for IP Legal Guidelines in Advertising Presentation Transcript

    • Protect your Rights and Avoid Liability!Current Developments and Major Implications forIP Legal Guidelines in AdvertisingThe Canadian Institute’s 19th AnnualAdvertising and Marketing Law ProgramJanuary 23, 2013 Margot Patterson Certified Specialist (Intellectual Property: Copyright) 1
    • Overview 2
    • Overview1. Changing Copyright Rules: User Generated Content2. How Social Media is changing your marketing practices and how you protect your brand3. Yours, Mine and Ours: Best practices for third-party content (partners & consumers) 3
    • Changing copyright rules:User Generated Content (UGC) 4
    • The Copyright Act – the essentials • Balance between creators’ rights and “users’ rights”• Supreme Court of Canada: Copyright Act sets out the rights and obligations of both copyright owners and users; exceptions to copyright infringement can be understood as “users’ rights”. CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 S.C.R. 339 5
    • The Copyright Modernization Act (CMA)What does the CMA mean for you, your IP and your brand? Among other priorities, the CMA recognizes the importance of consumer uses:• creates a new exception from infringement for user-generated content (Youtube mashups) (s. 29.21) 6
    • User-Generated Content“The [CMA] permits the use of legitimately acquired material in user-generatedcontent (UGC) created for non-commercial purposes.This applies only to creations that do not affect the market for the original material.Examples include making a home video of a friendor family member dancing to a popular song andposting it online, or creating a "mash-up" of video clips.This provision would not permit such activities as simply adding a few lines to an e-book or a brief introduction to a song and then posting the copy for free online, or re-ordering the tracks on an album and selling CDs at a flea market. Creators’ moralrights would also continue to be respected.Moreover, this provision applies only to the UGC creator of such works andonly for non-commercial purposes." 7
    • “Non-commercial User-Generated Content”29.21 (1) It is not an infringement of copyright for an individual to use an existingwork or other subject-matter or copy of one, which has been published or otherwisemade available to the public, in the creation of a new work or other subject-matter inwhich copyright subsists and for the individual — or, with the individual’sauthorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if […](2) The following definitions apply in subsection (1).“intermediary” means a person or entity who regularly provides space or means forworks or other subject-matter to be enjoyed by the public.“use” means to do anything that by this Act the owner of the copyright has the soleright to do, other than the right to authorize anything. 8
    • “Non-commercial User-Generated Content” (a) the use of, or the authorization to disseminate, the new work or other subject- matter is done solely for non-commercial purposes; (b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so; (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and (d) the use of, or the authorization to disseminate, the new work or other subject- matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject- matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one. 9
    • User-Generated Content• Conditions: – mention of the source (where reasonable), – individual believes that the source material was non-infringing, and – non-commercial purpose, – no “substantial adverse impact” on the copyright holder’s exploitation of his or her work. Reference: “The Copyright Modernization Act and UGC” http://www.fmc-law.com/upload/en/publications/2012/0612_The_Copyright_Modernization_Act_and_UGC.pdf 10
    • How Social Media is changingyour marketing practicesand how you protect your brand 11
    • Websites and Social MediaMarketing in real time• Social media is about getting the message out “right now”• What steps do you need to take to get it “right”?Key Considerations:• Consumer generated messaging• Blogging• Online Terms and Conditions 12
    • Consumer generated messaging• Advertising and marketing shifts from reaching consumers to engaging them, as: – Social media grows as a forum for consumer comment – Consumers expect companies to give them space to have their say• Many companies actively encourage consumer generated content, consumer generated advertising (CGA), and consumer referrals Reference: Engaging Consumers Online: Protect your Brand on Every Platform http://www.fmc-law.com/upload/en/publications/2011/Engaging_Consumers_Online.pdf 13
    • Consumer generated messaging• The lines of responsibility may appear blurred when third parties are providing content, but companies are responsible for their communications, including: – content on their websites, other company online platforms – external blogs that they pay for, support, or otherwise sponsor• Various practices to adopt to safeguard your site and your brand, when consumers are collaborators – Website Terms of Use – Monitoring – Blogger Agreements 14
    • Yours, Mine and Ours:Best practices for cross-promotion andusing Partner Content 15
    • Yours, Mine and Ours – Using Partner ContentHandout #1 – Promotion Agreement• Considerations: – Trademark licence – Legal Compliance – Confidentiality – Indemnification and warranty 16
    • Yours, Mine and Ours:Best practices for using Consumer Content 17
    • Yours, Mine and Ours – Using Consumer ContentHandout #2 – Online Terms and Conditions• Considerations: – Your website or another platform? – Facebook, Youtube, Twitter – Define “Content” – Who owns the Content? – Permissions: interact/download/store? Commercial purposes? – User-Generated Content: acceptable Content, licence, links to 3rd parties, indemnification 18
    • Yours, Mine and Ours – Using Consumer ContentHandout #3 – Blogger Agreement• Considerations: – Incorporate Online Terms & Conditions – Authorship / Licence to Use – Legal Responsibility – Opinions / Advice / Recommendations / Endorsements – Monitoring, take-down – Review and Edits – Term and Termination Additional Reference: FTC Revised Endorsement and Testimonial Guides http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf 19
    • Thank you!Margot Patterson(613) 783-9693margot.patterson@fmc-law.comMargot Patterson practices with the Fraser Milner Casgrain LLP IP, Communications Law,Competition Law, Entertainment | Sports | Media, and Public Policy | Regulatory AffairsPractice Groups
    • The preceding presentation contains examples of the kinds of issuescompanies dealing with IP Legal Guidelines in Advertising could face. If youare faced with one of these issues, please retain professional assistance aseach situation is unique.