Social media has become an integral tool to promote business ideas and engage with customers. With the monumental shift in the way businesses function today, the visibility of the products and services goes up a notch in just a few clicks. Social networking, media sharing and business platforms like Facebook, Instagram, LinkedIn and YouTube now form a key part of marketing strategy of majority of the businesses. The significance of social media marketing and promotion has become even more crucial during the ongoing pandemic as it provides endless ways to communicate and connect with buyers.
However, the interminable opportunities to promote a business come with challenges and one of them is the risk of intellectual property infringement. Social media with its easy to access content – from brand names, logos, images, videos, ideas, innovations – make it quite easy for someone to capture some one else’s trademark or copyright. In a digital world where the line between ownership, distribution and duplication of content have become blurry, intellectual property rights become much more critical and the onus of regulating the environment falls mostly on the social media platforms.
IP infringement on social media can occur in a number of ways. The most common one is the availability of counterfeit products that go unchecked and unregulated on social media websites many times despite the specific IP rules and copyright policies of these social media platforms. There was a study back in 2016 called “Social media and luxury goods counterfeit: a growing concern for government, industry and consumers worldwide” that found that one fifth of the 750,000 Instagram posts for luxury fashion brands were related to counterfeit/illicit products. For example, the case of Tommy Hilfiger against Facebook resulted from hundreds of adverts containing counterfeit Tommy Hilfiger products shown on both Facebook and Instagram despite the policies in place,
Another type of infringement is the business trademark abuse and misuse for both registered and unregistered trademark rights that is also bizarrely rife on social media platforms. Courts have held that ISPs can be liable for contributory infringement when they host a website where third-party publishes infringing content. For example, the case of an internet service provider involved in contributory infringement of Louis Vuitton’s trademarks and copyrights; or a much recent one in Pakistan where Descon Engineering Limited has filed a suit for infringement of trademark and unfair competition and damages against Facebook and for contributory infringement against YouTube.
Then there is also unauthorized used and distribution of content like videos and photographs, and also infringement of product design and patent.
These leakages occur despite the extensive IP infringement policies, standards and protocols that are followed by the social media platforms for every post. Most social media platforms provide easy process to rights owners to pursue in case of an IP violation on the platform. Facebook and Instagram have effectively identical policies for reporting violations or infringements of trademarks and copyright. Which involves online takedown forms. Twitter and LinkedIn have similar takedown request tools. In theory, their policies are easy and straightforward and are bound to satisfy the aggrieved party.
However, the efficacy of the policies and the result of the action taken by these platforms might not be as successful and simple. Examples of ‘no-action taken’ are many. Does this mean that the current measures and polices in place are ineffective – or at least insufficient? There is a need for these social media platforms to be more vigilant and preventive in identifying and tackling IP infringement. They need to be much more responsive to notices of trademark and copyright infringement and must act to deal with the issue as they can really tarnish a brand image.
Making reporting infringement directly to the social media website has made the process inexpensive, easy, and quick; but there is also a lack of transparency, objectivity, consistency, and coherence. Policies could be vague to understand, and responses have been sporadic. Why is there a need for social media platforms to up the ante on intellectual property right infringements? Because an alternative or additional step to reporting the infringement to the social media is initiating a lawsuit, which along with its benefits has the disadvantages; and some of the disadvantages for the online platforms include incurring high damages along with bad reputation.
