September 2010
Intellectual Property and Social Media
Social media creates new opportunities and challenges for software businesses particularly in relation to the protection of their intellectual property and business reputation. Social media can be used by software businesses to promote their brands and products and may form an integral element of the products themselves such as with online games. It can also be used by individuals, whether they are employees or customers of those businesses, to express and share ideas and opinions about a business and its products.
There is no fixed definition of social media but it typically involves the use of web-based technology to create a dialogue, share information, provide access to knowledge and develop a shared understanding. Well known social media tools include social networking sites such as Twitter, Facebook and LinkedIn.
Brands and social media
Social media tools can be used to help establish and increase the recognition and reputation of your brand online. Major software companies and SMEs alike seek to drive interest in their brand and to aid in the development of their products by engaging in a dialogue with current and potential customers. For example, Microsoft and Nintendo’s Facebook fan pages have thousands of ‘fans’ (registered Facebook users) discussing their software products. The power of customer-dialogue driven product development was harnessed by Microsoft in its recent Windows 7 advertising campaign.
The flipside is when individuals post negative comments about a company’s brand or products. Even using tools such as Google Alerts to try to keep up with references on the Internet to your business, brands or products, it is likely to be impossible to monitor new content comprehensively particularly for bigger brand owners. In any case, attempting to interfere with the free discussion of your brands and products is a recipe for bad publicity. Action is usually best reserved for cases where damaging statements about a business are being made and where a claim for defamation or malicious falsehood may be available. In these cases the first course of action is to contact the site operator to request that it removes the offending material and sanctions the contributor.
Copyright and online content
Social media is highly accessible and easily allows content, both user-generated and proprietary, to be created and exchanged. Content can be rapidly copied and disseminated making it almost impossible for rights owners to police the internet. This has implications for businesses that rely heavily on copyright to protect their products including the software industry. The Digital Economy Act 2010 includes a recent attempt by Government to involve ISPs in the fight against online copyright infringement but it remains to be seen how effective a regime this will be. Many in the main industries affected by piracy are concerned that the regime will be too cumbersome to be effective.
Prevention is therefore better than cure for copyright owners. A viable business model for making copyrighted content easily available on terms customers are willing to accept is likely to be key. Methods of generating interest in and monetising online content that are widely used, for example for online games, is to offer free trials for a short period or to make some content available for free but to charge for access to full content. Sound terms and conditions for access to content that are binding on the user are important for enforcing against misuse, for example through a right to refuse access following a breach.
Use of social media by employees
Social media is also being used employees. Use of social media such as Facebook could result in employers being vicariously liable for defamation, leaks of confidential information and infringement of intellectual property rights by their employees. It is important to have an internet use policy that expressly covers use of social networking sites and contains clear guidelines on what is considered reasonable usage. While monitoring employees’ internet use seems an obvious precaution, employees should know that their employer is doing this and it should be done so as not to fall foul of data protection and human rights legislation.
Conclusion
Social media is here to stay. Facebook for example has over 500 million active users, half of whom it estimates will log on to the site on any given day. Wise users will exploit the opportunities that social media has to offer whilst arming themselves to deal swiftly and effectively with threats.
