In this presentation FMC's Margot Patterson discusses protecting intellectual property and brands through discussion related to the Copyright Modernization Act, how Social Media is changing marketing practices and best practices for third-party content (partners & consumers).

1. Protecting your Intellectual Property
and your Brand
Social Media, the Copyright Modernization Act, and more
Presented by: Margot Patterson
Certified Specialist
(Intellectual Property: Copyright)
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2. Overview
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3. Overview
1. Changing Copyright Rules:
What does the Copyright Modernization Act mean for you?
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:
what does the Copyright Modernization Act mean for you?
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5. The Copyright Act – the essentials
• The subject matter of copyright:
– Literary works – including computer software
– Musical works – music files
– Dramatic and artistic works – graphics, photos
– Compilations – databases
• You may own, and use, more copyright than you know
• IP may be a company’s most valuable asset
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6. The Copyright Act – the essentials
• Key rights:
– Reproduction right
• Section 3(1) sole right to reproduce the work or any
substantial part thereof in any material form whatever
– Communication right
• Section 3(1) sole right to communicate the work to the public
by telecommunication
– Right to authorize
• Section 3(1) sole right to authorize any such acts
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7. 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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8. The Copyright Modernization Act (CMA)
• Bill C-32, The Copyright Modernization Act, 2010
“Through this legislation, the government will:
– modernize the Copyright Act, bringing it in line with advances in
technology and international standards;
– provide a framework that is forward-looking and flexible […];
and
– establish rules that are technologically neutral, so they can be
adapted to a constantly evolving technological environment
while ensuring appropriate protection for both creators and
users.”
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9. The Copyright Modernization Act (CMA)
What does the CMA mean for you, your IP and your brand?
The CMA:
• expands the fair dealing exception
(s. 29)
• creates a new exception from infringement
for user-generated content (Youtube mashups)
(s. 29.21)
• provides for a “notice and notice” regime
(s. 41.25-41.26)
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10. Fair Dealing
Q: How do you know if dealing is “fair”?
A: Purpose test and Fairness Test
1. Purpose test: research, private study, criticism,
review…and now also education, satire and parody
2. Fairness (6-step) test: purpose, character, and amount of
dealing; alternatives to the dealing; nature of the work;
and effect of the dealing on the work
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339
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11. Fair Dealing
• Yes, fair dealing is a “user’s right”, …and “must not be interpreted
restrictively”, but there are limits.
– CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339
• Commercial purposes can be acceptable
– CCH case and SOCAN v. Bell Canada [2012] SCC 36
• Online Music Previews – what were the limits?
– SOCAN v. Bell, 2012 SCC 36:
• Reasonable safeguards
• Limited access (30 to 90 seconds)
• Low quality
• Samples normally deleted
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12. 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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13. User-Generated Content
• Conditions:
– non-commercial purpose,
– mention of the source (where reasonable),
– individual believes that the source material was non-infringing,
and
– no “substantial adverse impact” on the copyright holder’s
exploitation of his or her work.
• How would Viacom International, Inc. v. YouTube, Inc. be decided
in Canada?
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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14. “Notice and Notice” for ISPs and search engines
Approaches to enforce your brand online
• Canadian “notice and notice” regime for ISPs & search engines
– ISP must forward notice of alleged copyright infringement as soon as
feasible to a subscriber, retain records necessary to determine
subscriber’s identity
– Notices of claimed infringement must be in writing, and contain
information set out in CMA and in Regulations (TBD)
• Difference from DMCA “notice and takedown”
• Delayed entry into force of Canadian “notice and notice”,
further consultations on specific requirements
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15. How Social Media is changing
your marketing practices
and how you protect your brand
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16. 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:
• Company representations
• Employee generated messaging
• Consumer generated messaging
• Blogging
• Online Terms and Conditions
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17. Company Representations
Your website or another platform?
– Register corporate / brand names with Social Media sites
– Review Terms and Conditions for these sites (and
periodically review changes):
• User name registration (and squatting policy)
• IP terms: TM, Copyright
• Ownership of content
• Enforcement
– How do these Terms and Conditions fit with yours?
– Monitor TM, brand use and enforce IP
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18. Company Representations
Protect your Brand through:
Responsible advertising / marketing and disclosures
– Competition Bureau Bulletin, “Application of the Competition Act to
Representations on the Internet”
– Review clarity and accessibility of disclaimers on your site
– Competition Act prohibits publishing untrue, misleading or
unauthorized testimonials (s. 74.02)
Reference: Engaging Consumers Online – Protect your Brand on Every Platform
http://www.fmc-law.com/upload/en/publications/2011/Engaging_Consumers_Online.pdf
Reference: Application of the Competition Act to Representations on the Internet
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03134.html
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19. Employee generated messaging
Internal Social Media Policy
• Boundaries between “speaking on behalf
of Company” and personal communications
• Use of Company logo, links
• Who is the Company spokesperson (media or other)?
• Who is the Company go-to person (disputes and questions)?
• Prohibited messaging: false, misleading, discriminatory, harassing…
• Recommendations, endorsements and links
• References to clients or partners
• Confidentiality
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20. 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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21. 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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22. Yours, Mine and Ours:
Best practices for cross-promotion and
using Partner Content
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23. Yours, Mine and Ours – Using Partner Content
• Popular Third-Party Brands
• What brand element are you using?
– NameTM
– LogoTM
– Screenshot
– Tweet
• Review Guidelines, Brand Permissions, e.g.:
– http://www.facebook.com/brandpermissions/
– http://www.google.com/intl/en/permissions/
– https://dev.twitter.com/terms/display-guidelines
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24. Yours, Mine and Ours – Using Partner Content
Handout #1 – Content Licence Agreement
• Considerations:
– Licence vs. assignment
– What rights? “Licence to use?”
– Conditions
– Exclusions
– Warranties and indemnification
– Fees
– Term
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25. Yours, Mine and Ours – Using Partner Content
Handout #2 – Promotion Agreement
• Considerations:
– Trademark licence
– Legal Compliance
– Confidentiality?
– Indemnification? Warranty?
– Miscellaneous:
• Parties’ relationship
• Amendment
• Jurisdictional considerations / Applicable law
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26. Yours, Mine and Ours:
Best practices for using Consumer Content
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27. Yours, Mine and Ours – Using Consumer Content
Handout #3 – Online Terms and Conditions
• Considerations:
– Your website or another platform? – Facebook, Youtube, Twitter
– Define “Content”
– Who owns the Content?
– Permissions: interact/store/download? Commercial purposes?
– User-Generated Content: acceptable Content, licence, links to
3rd parties, indemnification
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28. Yours, Mine and Ours – Using Consumer Content
Handout #4 – 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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29. Thank you!
Margot Patterson
(613) 783-9693
margot.patterson@fmc-law.com
Margot Patterson practices with FMC Law’s IP, Communications Law, Competition Law,
Entertainment | Sports | Media, and Public Policy | Regulatory Affairs Practice Groups

30. The preceding presentation contains examples of the kinds of issues
companies dealing with protecting their intellectual property and their
brand could face. If you are faced with one of these issues, please retain
professional assistance as each situation is unique.