Introduction:
One of the most effective and potent forms of marketing and advertising is social media impact. Social media marketers and content producers spend a lot of effort into developing a reputation as authorities on particular subjects, goods, and industries. The people who are well-known, powerful, and relevant enough to influence others within their online social network are known as social media influencers or creators. They use social media platforms like Instagram, Facebook, YouTube, Twitter, Snapchat, Reels, Pinterest, among many others, to make money through advertising, product endorsement opportunities, and other revenue streams. India’s influencer market is estimated to be worth between $75 to $150 million, according to a recent Adlift study, while the global influencer market is currently valued at $1.75 billion and is expected to increase further.
Any work’s original creator owns the only ownership rights to it. The rights of any person who creates online content, as established under copyright law, must be safeguarded. A country’s copyright regime must invariably achieve a balance between the legitimate demands of organised society and the interests of copyright owners.
Social media differs from traditional print and electronic media in that it comes with a variety of tools. Among other things, two distinctive features of social media are: Tools for communication and information exchange; tools for the global sharing and distribution of content and information. Social media is a more influential instrument than conventional media because of these two factors.
Why is it important for influencers to comprehend intellectual property?
When someone makes a tangible or intangible product, they have the last say over how it is used. Daily consumption of the content on social media websites occurs across a number of channels. With this, they must comprehend that millions of individuals can quickly access and copy their original work.
A few justifications for registering intellectual property include the following:
1. To prove intellectual property rights are owned, which aids in protecting rights in the event of a disagreement.
2. It is simpler to obtain restitution when someone violates your registered copyright, trademark, or domain name.
3. Once users are aware that the IP is registered, they prefer to avoid using the content.
4. If creator has registered it’s IP, it’ll be easier to remove the content if it gets plagrised as compared to unregistered IP which takes strong evidence to remove.
5. A registered trademark increases the likelihood that others will recognise your brand.
It is significant to remember that copyright registration is not required. Any improper use of copyright in a work is typically considered a copyright violation. The law does permit some unauthorised uses of copyrighted works for certain purposes, and these are not regarded as infringements. The fair-dealing copyright doctrine makes it possible.
Recent legal actions involving social media influencers for IP rights infringement:
The copyright for content posted on social media platforms like Instagram, Twitter, Facebook, and YouTube is protected, so it cannot be used without authorization. Gigi Hadid, a well-known fashion icon, was sued by a photographer after publishing a photo of herself on her Instagram and Twitter accounts in the case Peter Cepeda v. Jelena Noura Gigi Hadid and IMG Worldwide in 2017. The well-known model allegedly posted a photo of herself that photographer Peter Cepeda took and in which he holds exclusive rights, constituting an act of infringement that was wilful and intentional, in disregard of and with indifference to Cepeda’s rights, according to the since-settled lawsuit filed by Cepeda in the U.S. District Court for the Eastern District of Virginia.
Actress and singer Jennifer Lopez is the most recent famous person to be sued for copyright infringement. Lopez and her production company are being sued for over $150,000 in damages by photographer Steve Sands, who claims that Lopez published a photo of his on Instagram. According to Sands, Lopez and her production company did not get a licence from Sands or authority from Sands to submit the image.
In Marico Limited v. Abhijeet Bhansali, the Bombay High Court recently considered the duties and responsibilities of social media influencers. When YouTuber Abhijeet posted a video titled “Is Parachute Coconut Oil 100% Genuine?,” Marico Limited, the owner of the well-known coconut oil brand “Parachute,” initiated a lawsuit against him. Marico contended that Vlogger misled their audience by making false claims and using inaccurate tests to back them up. “Commercial activities” was the description of his conduct. The Court highlighted that while making statements, a social media influencer does not have the same freedom as an ordinary individual. Without considering whether they were sincere or not, the remarks were spoken recklessly.
Making sure IP laws are followed:
1. Trademarks and logos: Trademarks are a sort of intellectual property that are used to distinguish one’s goods and services from those of others by identifying, categorising, and indicating their origins. In order to use a trademark, brand name, or product in a social media post, blog, video, or photo, creators must get the owner’s written approval. Brand owners are shielded by trademark rules against two forms of infringement: potential for confusion and recourse.
2. Copyrighted content: Copyright is a sort of intellectual property (IP) that protects original works of art, such as photographs, motion picture films, audio recordings, texts, and other creative works. It permits owners of copyrights to share, replicate, exhibit, and perform their creative works.
3. Domain names: Domain names are simple to memorise and use. Simply said, a domain name is a company’s “internet identity.” Each website has a domain name that serves as an access point and an address. In most cases, domain names begin with a business name and end with.com,.org,.gov,.net,.in, etc.
4. Designs: A lot of companies now sell their products on social media, and for some, it serves as their only means of advertising. Because companies are sharing IP and protectable designs when they promote their new items, they may be able to stop people from using social media or other methods to sell products based on those designs.
IP legal requirements:
ASCI recommendations
Since the creation of these social media sites, online marketing or digital marketing has been an untapped resource, but things have changed recently. The laws weren’t as harsh when the practise originally began, therefore no one could be held accountable. The situation has changed as a result of ASCI’s development of “Guidelines For Influencer Advertising In Digital Media” (the “Guidelines”).
The draught laws, which went into effect for the first time in February 2021, initially laid forth requirements for influencers to abide with. Following careful evaluation of every idea, the ASCI publicly unveiled the regulations, which took effect on June 14, 2021.
An influencer, according to these rules, is “someone who has access to an audience and the ability to influence their audience’s purchasing decisions or thoughts about a product, service, brand, or experience. A brand may work with an influencer to generate material in an editorial setting or jointly. A celebrity with millions of followers might also qualify as an influencer. A Natural Person is not always required to be an influencer.
What is meant by a material connection?
Any relationship between a provider of a good or service and an advocate, critic, or other individual who makes a claim or publishes a message that could influence the veracity or weight of the claim. Free goods, especially those obtained without request, direct monetary exchange travel or lodging, media bartering, coverage, rewards, and payments with an expectation—explicit or implied—are all examples of material connections.
New addendum :
The guidelines include a new addendum as of July 15, 2021. It stipulates that the following proof must be presented to ASCII if an influencer or advertiser wants to contest that a communication in question is not an advertisement since there is no tangible connection:
1. A statement from the advertiser saying that as of the posting date, they had no material connection to the influencer.
2. If, despite reasonable attempts, it is unable to identify the advertiser of the brand mentioned, then the influencer’s proof of purchase of the featured goods and brands would be sufficient to disprove the material relationship.
The following are the effects of not adhering to the ASCI Guidelines:
The ASCI Guidelines do not directly refer to the complaint redressal system as a consequence of non-compliance. If the Guidelines are not followed, it is legal for someone to register a complaint. A complaint may be filed over the phone or online at ASCI.
In addition to the ASCI, the Central Consumer Protection Authority (“CCPA”) has been established under Section 10 of the 2019 Consumer Protection Act, which has recently undergone revision. Concerning infringement of consumer rights brought on by deceptive advertising, the CCPA is in charge of resolving complaints. It carries consequences including a fine of ten million rupees and a two-year sentence in prison. The fine and the period of jail may increase in instances of subsequent offences.
You Can Protect Your Digital Content On Social Media By Following These Steps:
1. Copyright protection: A copyright is a type of intellectual property (IP) that guards creators’ original works and enables a clear demonstration of ownership in court cases involving infringement. The emblem, the words “all rights reserved,” or both can be found at the bottom of a webpage to indicate copyrights.
2. Utilization of Watermarks: Any protected idea or production can be watermarked to allow for unrestricted sharing of any digital content while yet maintaining a connection to the original inventor. This means that if a picture is copied, it can be quickly identified as being your property thanks to the watermark.
3. Using portals/Restricting Access: By using a password-protected portal, you can limit access to other website users while still granting access to your customers or subscribers. This action can stop competitors and other groups from stealing and copying your distinctive content and approach by preventing the loss of sensitive information.
4. Be alert and keep a close eye on your competitors’ websites and social media accounts to see if there are any instances of identical content or outright plagiarism. You can identify what has to be changed to keep your material original and fresh by looking at your competitors’ online presence.
5. Seek legal counsel: IP laws can make such infringers accountable for their activities. By way of appropriate legal advice and you can take back your content and hold the infringer accountable for their acts by taking the right legal steps.
In summary:
As a social media influencer and content creator, it is crucial to exercise caution and protect your work given the popularity of social media platforms and the growing number of individuals using them. Even if the problem of intellectual property on social networking sites is complex, it can be resolved if the right precautions are taken. Creators must remember
that they have a duty to the viewers when examining an item in order to protect their intellectual property.
Since social media gave us all the ability to share content and publish it ourselves, the regulations governing cases of intellectual property have altered dramatically. The problem with cases of IP on social media is complex, yet manageable when the proper precautions are taken for compliance and protection.
