Companies have been forced to re-examine their intellectual property policies in the open and infinite environment of the Internet, which has resulted in growing trends in creative commons and open source licences, which rely on traditional intellectual property rights and licences, but in a less restrictive manner.

With the proliferation of social media comes questions of the distribution and control of intellectual property, says information and communication technology (ICT) specialist law firm Chetty Law senior attorney Pria Chetty.

She notes that Internet revolutionaries say that a closed approach to subscription and distribution models is out of date and no longer applicable, while the idea of a creative commons licence is beginning to take root. Creative commons licences provide flexible protection and freedom for authors, artists and inventors.

While intellectual property is traditionally created for personal gain, Chetty explains that not all innovations are created for money. Inventors, writers and researchers may now purely innovate to add to the creative body of work available, making their work accessible to the public.

She adds that it is about the sharing of information for the general good, enabling learning and progression, rather than personal enrichment. For this reason, alternative licensing models have been created, to allow for freer distribution.

Creative commons licences have resulted in new business models taking hold. A company may release information free of charge, allowing for greater dissemination and thus greater awareness of their brand, in the expectation that people exposed to the brand will come back to the company for more. For example, a new music group could release one track off their album on the Internet, making its name known globally and attracting buyers. Similarly, think tanks and nongovernmental organisations might make their research available on the Internet for free, allowing for greater access to important information that could be wasted if kept private and charged for.

The concept of a creative commons licence has an important role to play in social media. With blogging, for example, writers make available large amounts of copy for public viewing. Similarly, Internet-based media publications allow free access to their material, but would place restrictions on the copying and redistribution of their work. Web-based publications are increasingly using social media as a means to increase readership.

Social Media and Intellectual Property

The first chairperson of the Internet Advertising Bureau's Social Media Council Lloyd Salmons says, "social media is not just about big networks like Facebook and MySpace, it is about brands having conversations."

Chetty says that companies should have a social media policy whether they plan to use social media or not, as it is a powerful tool that can be used to spread information and to create awareness.

She adds that, even if companies do not use social media in the dissemination of their work, employees and clients will use it. Therefore, companies need a risk management strategy.

Employee use of social media needs to be carefully regulated, says Chetty. Organisations should have clear policies on the authorised and unauthorised use of social media, as well as policies qualifying what constitutes misconduct by employees. There are, of course, also issues of productivity in the use of social media by employees.

In terms of client use of social media, Chetty says that there are many international cases of patients complaining on websites about their treatment in hospitals. This shows that companies should be aware of how their brand is portrayed on the Internet.

Chetty refers to the case of well-known potato chip brand Pringles in the UK. To save taxes, which Pringles felt were being improperly levied against it, the company argued (and won its case) that its chips did not qualify as a potato product. The argument was taken up on social media sites around the world, with the result that, Pringles received much inadvertent negative publicity. This proves that the ability of a brand to manage its public image is limited in the open and boundless environment of the Internet.

The Pringles case also provides an understanding of the legal issues involved in the use of social media, be it use by a company for positive purposes or by consumers complaining about a company.

At risk, are freedom of expression, defamation, breach of privacy, interception of communications, reputational risks and the dissemination of electronic records. There are also questions around the ownership of content on social media sites. Depending on the terms and conditions of social media sites, the copyright of the content that is posted may be vested in the social media company, rather than the person posting the information. Chetty recommends that organisations construct content licensing frameworks dealing with the chain of custody of rights in content published on line.

Chetty stresses that companies must have a risk statement on social media in their ICT governance strategy. This statement should inform the advertising, marketing and public relations initiatives of the company in relation to social media. She recommends that businesses also monitor their brand on social media sites and take considered action to respond to negative profiling.

In South Africa, there are few concrete laws regulating the Internet and social media. Chetty explains that South Africa is a few steps behind in terms of the legal problems that arise in the ICT environment, but says that there are vague hints in existing legislation.

The Electronic Communications and Transactions Act, for instance, gives legal force and effect to all transactions undertaken electronically. In terms of the definition of the data messages provided in the Act, social media messages would fall under the scope of this legislation.

Chetty says that the South African judiciary tends to shy away from such technical subjects, with the result that there are few precedents on ICT law. South Africa, therefore, looks to foreign precedents, such as Canada, Australia, the UK and the US for guidance on the application of ICT law in South Africa.