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Tread carefully

Dids MacDonald, CEO of Anti Copying in Design, discusses social media, IP (intellectual property) and ethics

The emergence of social media in the 21st century, especially in the last decade, has been a spectacular metamorphosis and transition of communication methods. In 2013 the top three social media platforms - You Tube, Facebook and Twitter - have 4 billion, 1.1 billion and 500 million users per day respectively. Light years from the first email being delivered in 1971 and heady stuff when you consider Alexander Bell's invention of the telephone, which changed our lives in the 19th century. Traditional methods of communication have had a wake-up call and there are new kids on the block turning the world inside out with different rules of engagement. There's a whole new shorthand of messaging where individuals can reach out globally in milliseconds which is now considered the norm.

Embracing social media positively and ensuring that it's used in an ethical way must be the key objective, so it's important to learn about some of the rules, especially when it comes to intellectual property. Privacy and intellectual property concerns will continue about the public sharing of personal information on social networks, so it's vital to get it right. Here are a few tips to think about and add to the ones already known.

If you discover a copy of your design, ensure that you don't accuse someone publicly. It's likely there will be a backlash and you could be sued not only for defamation but for making a groundless threat if it's subsequently proved otherwise.

Making libellous comments - defamation (or slander) Social media content can potentially be seen by millions. It's a bit like a world notice board, so take care of what you say, be fair not accusatory. Libel is the communications of false information about a person, group or organisation and defined as defamation by printed words, images or gestures. Slander is defamation by printed words, images or gestures. Slander is defamation by the spoken word. Libel laws were created to protect us from unsolicited attacks on ours and other's reputations.

Using images without permission Copyright law not only protects printed 2D work but digital publication together with photographic images and graphic art work. The bottom line is that images are protected by copyright and cannot be used without the permission of the originator, so always ask permission. Images and photographic work must be acknowledged as the original creator; the copyright owner also has moral rights. If in doubt, don't leave yourself open to challenge. IP creators are becoming much more IP savvy and rightly so.

Blogging Don't get into trouble with what you're blogging about! The basic rule is to acknowledge someone else's IP. Reportage, facts and figures and ideas are not protectable; think of yourself like a traditional newspaper reporter expressing a critical opinion. Check your facts and don't say anything that is untrue or defamatory. Freedom of speech is for all and the use of quotations is considered fair use, but if you're in any doubt at all, check with your lawyer. Questions are often asked about deep linking to web pages and so far no court has ruled on this subject.

IP crisis Whether it's an IP crisis i.e. your rights are infringed on social media, or you have been publicly challenged by a creator, it really is best to consult an IP lawyer. ACID members are entitled to initial free advice to assess the best course of action. But lawyers are in business too and will only act if they are engaged and paid, though ACID members do get the benefit of discounted fees.

In the situation where any social media activity results in a media backlash or negative publicity, this can spiral very quickly so it's important that you have discussed this internally. Trust in a brand is one of the most valued assets. If you have made a genuine mistake, front up and say I'm sorry! Social media is meant to be a fun, light-hearted shorthand in communication. Engaging positively with those who you may have upset is the best way forward. In a relatively new media environment, mistakes will happen and we can learn from our own and others.

Trademarks and brands A trademark is a badge of origin or name by which your company is known and there are issues both with misuse by others and one's own misuse of trademarks on social media. So what can one do to proactively protect your brand? Internally, a company should start with a set of rules about the use of its trademark professionally and socially, It's a good foundation of protection, together with a written code of conduct, providing a protocol for anyone who engages in social media on behalf of the brand. It's also advisable to have a tracking protocol in place for any misuse. If you discover misuse of your trademark by a third party, systematically gather together all the evidence and consider whether it's worth issuing a takedown notice through the social media website or approaching them with a formal legal letter from your solicitor. Evaluation of any loss or damage to reputation is key, and acting quickly and decisively will mitigate any future problems. If someone challenges you for misuse of their trademark its best to consult an IP expert immediately.

Case Study - Tatty Devine and Claire's Accessories

For most micro and SMEs taking on large companies for suspect IP infringement is impossible because of the cost, the time taken to pursue and the scale of opponent. So, when Tatty Devine discovered that Claire's Accessories was selling products almost identical to its own, it decided to start what became a very effective media campaign. Tatty Devine simply put the original and alleged copy of its jewellery on social media and asked its customers to give an opinion with a cleverly worded 'Spot the difference' banner.

As with the Rachael Taylor and Marks & Spencer case, the design community is quick to recognise what they consider to be unfair and responded to the campaign vociferously. Sufficient enough to achieve a result in Claire's Accessories removing the products from sale in a cheap, effective and a quick way! But do beware; this strategy is not risk free and it's important to remember the point about groundless threats and to avoid using any defamatory statements. Jeremy Phillips of the famous IPKat blog commented on the case: "Social network sites also have limitations; they can't provide any financial compensation for the victims of copycat products or guarantee that imitations will be permanently taken off the market."

As ACID has found, it's advisable to use the right language which doesn't leave the aggrieved in a worse position or open to challenge. Using social media to engage the design community in alleged misuse has to be carefully handled and, preferably, by an organisation or IP expert with experience of these types of campaigns.

ACID has never shied away from naming and shaming but it's also important to remember about engagement and IP as a positive force. Through the soon-to-be-launched ACID Marketplace, a solution-led initiative and safer online trading conduit between design buyer and designer, this will be provided - watch this space!

For more information, visit www.acid.uk.com

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