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People love sharing cat photos. Astonishingly, one source reports that as of March, 2016, over 87 million photos and videos were tagged “#cat” on Instagram alone.
But what happens when someone shares one of your photos or videos to social media or a web site without your consent? While cats have limited legal rights, you may have rights in copyright or trademark and such sharing can raise a number of legal issues for you, the sharer and the online platform.
If your valuable (presumably non-cat) content was shared without your consent, you first need to identify your trademark and/or copyright interests before determining how best to protect those rights. Depending on the content and context, this process may be simple or complex.
For example, if your trademark is registered, you have statutory remedies under the Trade-marks Act. But even if your trademark is not registered, you might
still have common law rights preventing others from passing themselves off as you or your business. In the case of copyrighted material, you have a variety of rights under the Copyright Act to prevent others from exploiting your work for their gain—again, even if the material is not registered.
Next you must try to determine the details of the infringement: who, what, where, when and why. The issue of “where” can be particularly important as intellectual property law varies even between neighbours as close as Canada and the United States. For example, under the Digital Millennium Copyright Act, American internet service providers (ISPs) must take down allegedly infringing content after appropriate notification, after which the alleged infringer can take steps to establish their right to use the content. By contrast, Canadian ISPs are only required to forward notices of infringement to the alleged infringer.
Most social media platforms recommend that you contact the infringing account directly to request removal of your content. Advice and care at this step is crucial as an aggressive approach might be counter- productive. For businesses and content creators, public relations can be just as important as legal rights.
Therefore it might be better to file a complaint directly with the platform. Facebook, Instagram, YouTube, Twitter and LinkedIn have relatively straightforward online forms in compliance with applicable intellectual property regimes. These forms require details regarding the complainant, their ownership of the offending content, and the intellectual property rights being relied on as well as a link to the unauthorized content.
If these processes don’t work or, if they work but the infringement is severe, then legal action may be necessary. This raises jurisdictional, service and practical issues, such as establishing the infringer’s real world identity; determining the available and appropriate remedies to seek in which jurisdiction; and trying to avoid chasing infringements multiplying across platforms. These issues can create a game of whack-a-mole.
Most social media platforms and web site operators will not freely share identifi- cation information, by policy or by legal obligation, without a court order. In Canada, what’s known as a Norwich order may be needed to compel an ISP, web site host or operator to disclose the user’s identifying information.
From the host’s or operator’s perspective, infringements by users and the threat of legal actions can raise questions about how to respond in both the short- and long-term. These thorny issues only multiply when hosts operate across multiple jurisdictions.
As personal and corporate activities migrate online, navigating these legal issues and processes is increasingly important and complex. Businesses and individuals with online presences—with or without cats—will likely benefit from legal advice on how to deal quickly and efficiently with trademark or copy- right infringement.
For more information on copyright in the digital age, please contact
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