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Whose tweet is this anyway? How to handle ownership and IP on social media
31 August 2017

Social media are no longer the exclusive terrain of vanity queens sharing their karaoke sessions, philosophies on carbs and cat pictures. For an increasing amount of people, social media have not only become their preferred means of communication but even their primary source of information. That may sound troubling, but it also creates opportunities. More and more businesses realize the commercial impact of social media and are incorporating these channels into their business and marketing plans. All this uploading and sharing raises some questions, for example: how do you make sure your organization owns the content and the data generated via social media?

Content ownership

Content posted on social media consists mostly of text, pictures, sound and video recordings: all types of content that can be protected by copyright. The copyright owner holds the exclusive rights to reproduce and publish the material and to prevent others from using it without their consent. The copyright will be owned by the person who creates the content. As an exception, creations of employees will automatically belong to the employer if the content was made in the performance of their employment. For example, a company/employer will own the rights to a blog posted by the marketing assistant and to uploaded sketches made by their design team.

Social media accounts

The corporate accounts will of course have to be managed by natural persons. Some companies have employees who are fully dedicated to social media activities who post, upload and comment every day on the company’s Facebook or Twitter account, aiming at acquiring as much exposure and friends or followers as possible. The copyright in the content they generate will probably belong to the company as their employer, but who owns the account itself?

Employees handling your account

A social media account, including the list of friends or followers, is not by itself protected by an IP right such as copyright. The question rises what right should be relied on if a (former) employee refuses to provide access to the account or changes the account name while keeping all connections. In lawsuits flowing from such conflicts, companies may try their luck by invoking misappropriation of trade secrets, as they might do in case it concerned a traditional customer list, violation of a contractual non-solicitation clause or violation of the duty to be a ‘good employee’ as stipulated in art. 7:611 Dutch Civil Code.

Social media clause

The best way to prevent such conflicts from happening is to include a social media clause in employment agreements or incorporate general social media policies, clearly stating the ownership status of such accounts. While you’re at it, you might as well include guidelines on how to appropriately use social media when it concerns the contents of their (confidential) work, colleagues or reputation of the company.

License to platforms

The protection of accounts and content should also be considered in the relationship with the social media platforms. The terms and conditions of Facebook, Twitter, YouTube, LinkedIn and Instagram all have a more or less similar IP clause: the user maintains ownership of its content, but the platform is granted a virtually unlimited license to use anything uploaded. This means that they can reproduce, store, transmit, publish, adapt, modify and sometimes transfer your content without paying any compensation. The first types of use may be necessary for proper functioning of the platform (copying to servers, distributing to ISP’s, etc.) but the right to change and sell (transfer) content doesn’t seem necessary – unless you take the financial/commercial aspects for the platforms into account. There’s nothing much to do about these terms if you’re set on using social media, and the platforms themselves generally commit to not abusing their ‘rights grabs’. Nevertheless it’s wise to keep in mind what you’ve signed up for when deciding what information will be shared and in what way.

IP infringement

Although it seems unlikely that the platforms will use your content in ways you don’t agree to, it is practically guaranteed that other users will. Most users probably don’t even realize that some content is protected by copyright and will for example download your images and use them for their own website or publication. Also trademark infringement occurs regularly, even by enthusiasts operating a fan page in your company’s honor. First of all, it’s practically impossible to monitor all traffic on social media to detect infringement. Second of all, it should be taken into account that everything is nowadays shared on social media and aggressive letters demanding that infringing use of IP rights is ceased, “or else…!”. Consider how you want to come across when addressing copyright infringers; a friendly “thank you for your enthusiasm for our work, but please note that by using it you’re infringing our IP rights” might be more suitable than a lawyer’s letter threatening with proceedings if you want to avoid reputational damage. 

Plenty of food for thought on how to use social media for commercial purposes. For more information on the legal implications, please contact us by phone or e-mail, or of course on LinkedIn, Twitter, Facebook… etc.

For more information please contact Kriek Wille or Mariko Kloppenburg.