Wednesday, February 16, 2011

HEY COLONEL, FACEBOOK ME THE 11 SECRET HERBS & SPICES: Protecting your intellectual property from the slimy fingers of social media.


I recall one particular Monday morning at the beginning of the 7th grade being sat down by our year advisor in the largest science lab to be told it was finally time to pick a topic for my individual project. Almost immediately, from nowhere, an idea popped into my head. And so it began, the next 3 months of pretending either I hadn't thought of an idea yet, or that my idea sucked (even though secretly I knew I was onto a winner). Why wouldn't I share? For the same reason as KFC has yet to reveal their 11 secret herbs and spices, I knew if someone else heard my idea they'd copy me, and maybe do it better. In short, I was scared someone might steal my idea.

The truth is, I'm not alone. We as a society have always valued secrecy to some degree. Well, perhaps I'd be more correct in saying we have always valued the creation of new ideas. In turn, we have generally wanted the actual creators of those ideas to get the credit they deserve. And in that scenario we see outlined the concept of intellectual property.

IP. More than just a funny acronym, IP covers areas including (but not limited to) copyright, patents, trade secrets, designs, trademarks and passing off (please wipe that smirk off your face, it is a legitimate area of law…) So what do all these areas have in common? They each attempt to give the creator some level of protection over (and reward to) their idea. However, this whole landscape becomes tricky when we venture online, into our brave new world that is social media.


Remember that piece we wrote on being bound by the terms? Well, these terms become particularly relevant when we consider their impact on your Intellectual Property rights. Let's take Facebook as an example.


By agreeing to Facebook's "Statement of Rights & Responsibility", you have granted them a "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook". Confused? Basically you have given them the right to do whatever they want with any content (or ideas) that you post on their site. This includes any music you have composed, any poetry you have written, any scientific discoveries you have made, any secret recipes you may have for fried chicken… basically any idea over which you hold intellectual property rights.

Now, Mark Zuckerburg is quick to reassure us that we retain the actual copyright over any self-created content (see Zuck's response here: http://on.fb.me/dFkeRj). Unfortunately, his reassurances mean very little.

Let's go back to our 7th grade example:

I settled on a particular project, and did quite well. So well, in fact, that my teacher came to me and suggested I properly report my findings, in book form. So (imagine) I wrote that book. Let's fast-forward a decade or two, to this online world of ours. Suppose before I had the chance to publish the book myself, I decided to upload each chapter to Facebook for my friends across the country to read. Now, suppose Zuck's army in their cruising and perusing of profiles came across my page. For some reason, they saw promise in my chapters, and decided to publish them, in their own book. I’d already given them my “approval” (see above), so as long as they attribute me as the author they don’t need to give me anything further[i]. I’ve got no say over the pictures that are put with my writing or any commentary that they may attach. And how much money am I entitled to? None. Nada. Nil. ZILCH. And they don't have to. I have already given them that right. And so have you.

But they wouldn’t do that…… Would they? Welcome to the law, my friend. As a private individual you have no say over when someone will enforce his or her legal rights. You don’t know what someone will do with the rights they hold. Legally they may choose to enforce their rights, or they may not, that’s part of the fun! The fact is, they can enforce that right, and therein we find the problem. If they choose to enforce their rights, you can’t stop them.

So what am I trying to say? BE CAREFUL what you post on social networking sites. If you compose a song, think carefully before uploading it to your band’s Facebook page. If you write poetry, consider whether there is a better place to publish that poetry than as a note on your page. If you take photos, consider using a ‘watermark’ so that even if your photo is reused it will be obvious to whom the artistic work belongs. While you may retain the official copyright after uploading, if you have given away an unrestricted, royalty-free right in the world of social media, you can very quickly limit any benefit that your copyright gives you. The power is in your hands. Now that you know, please be careful.

By the way, in case you were wondering, I aced my individual science project… and if anyone happens to know the Colonel’s recipe, you can tweet it to me @sociallylegal ;).




[i] Under section 193 of the Australian Copyright Act 1968 (Cth), an author will always maintain a moral right (or ‘droit morale’) of attribution, that is, the right to be known as the author. This cannot be assigned to another, at least not under Australian law.  In the US it is a more complicated situation, but is covered under 17 U.S.C. §106A among other areas (see http://bit.ly/i2ypYj or http://bit.ly/g5zlEZ).

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