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)

1. Protect your Rights and Avoid Liability!
Current Developments and Major Implications for
IP Legal Guidelines in Advertising
The Canadian Institute’s 19th Annual
Advertising and Marketing Law Program
January 23, 2013
Margot Patterson
Certified Specialist
(Intellectual Property: Copyright)
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2. Overview
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3. Overview
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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4. Changing copyright rules:
User Generated Content (UGC)
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5. 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
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6. 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)
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7. User-Generated Content
“The [CMA] permits the use of legitimately acquired material in user-generated
content (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 friend
or family member dancing to a popular song and
posting 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’ moral
rights would also continue to be respected.
Moreover, this provision applies only to the UGC creator of such works and
only for non-commercial purposes."
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8. “Non-commercial User-Generated Content”
29.21 (1) It is not an infringement of copyright for an individual to use an existing
work or other subject-matter or copy of one, which has been published or otherwise
made available to the public, in the creation of a new work or other subject-matter in
which copyright subsists and for the individual — or, with the individual’s
authorization, 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 for
works 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 sole
right to do, other than the right to authorize anything.
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9. “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.
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10. 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
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11. How Social Media is changing
your marketing practices
and how you protect your brand
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12. Websites and Social Media
Marketing 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
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13. 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
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14. 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
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15. Yours, Mine and Ours:
Best practices for cross-promotion and
using Partner Content
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16. Yours, Mine and Ours – Using Partner Content
Handout #1 – Promotion Agreement
• Considerations:
– Trademark licence
– Legal Compliance
– Confidentiality
– Indemnification and warranty
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17. Yours, Mine and Ours:
Best practices for using Consumer Content
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18. Yours, Mine and Ours – Using Consumer Content
Handout #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
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19. Yours, Mine and Ours – Using Consumer Content
Handout #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
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20. Thank you!
Margot Patterson
(613) 783-9693
margot.patterson@fmc-law.com
Margot Patterson practices with the Fraser Milner Casgrain LLP IP, Communications Law,
Competition Law, Entertainment | Sports | Media, and Public Policy | Regulatory Affairs
Practice Groups

21. The preceding presentation contains examples of the kinds of issues
companies dealing with IP Legal Guidelines in Advertising could face. If you
are faced with one of these issues, please retain professional assistance as
each situation is unique.