Intellectual Property & the digital market – an interplay
The Season 7 premiere of the popular television series; “Game Of Thrones” was watched through legal channels over 16 million times since its debut in July 2017. However, it has been pirated over 90 million times during the same period. This is nearly six times more than the official view count and occurred through illegal streaming, torrenting and direct downloads.
Introduction
Digital marketing is the promotion of products or brands via one or more forms of electronic media. It is the marketing of products or services using digital channels to reach consumers with the key objective of promoting brands through various forms of digital media. Thus, digital marketing is any form of marketing of products or services through any form of electronic media including but not limited to the internet, mobile phones, social media, electronic bill boards etc.
Difference between digital market and traditional market
A digital market is that hypothetical space where products and services are marketed and advertised using electronic media. The main difference between the digital and traditional market is that the former allows the deployment of advertisement channels and methods that enable organisations to analyse marketing campaigns and quickly understand what is working and what is not, typically through near-instantaneous customer feedback. Examples are internet banner advertisements, YouTube videos, emails, social media, digital content in e-books, electronic newsletters, Geolocation, mobile marketing (typically mobile phones), advertisements in video games etc. Traditional marketing on the other hand, relates more to providing information to the public on the existence of a particular brand, with the hope of the audience patronising the brand. It is restrictive in nature, with very little interaction between the advertising medium and the customers. An example is Print media.
Intellectual property (ip): A significant part of the digital market
The importance of Intellectual Property to the digital market cannot be over-emphasised. The most casual observer of the digital market will be inundated with a myriad of names, marks, brands, logos, designs and phrases, all engineered to attract the attention and patronage of consumers; all easily and freely accessible; but which are yet the exclusive property of some person or organisation, with the attendant Intellectual Property Rights. It could be said that the digital market is essentially an Intellectual Property market, where organisations brandish their names, brands, designs and creations in the face of prospective consumers to attract patronage. Thus, a rapidly growing concern of organisations in the digital market is the protection, preservation and enforcement of their Intellectual Property Rights.
Forms of ip assets in the digital market
In a traditional market, IP assets are very easy to spot and distinguish: Books, Bottles, Designs, DVDs, CDs, Photographs etc. are quite obviously the property of the manufacturer or creator. In a digital market however, things may not be so simple. The digital market is a world of pictures, signs, logos, texts, videos and designs, all electronically generated and designed to be easily accessible to the public. In addition, continuously improving technology keeps the manifestation of IPRs in the digital market in a constant state of flux.
What then are the forms of IPRs that an organisation may have to protect in the digital market?
Some commonly protected forms of IPR include:
Trademarks (Names, symbols, brands); Websites designs; Domain names; Social media accounts; Online advertisements; Videos; Photographs; Sound recordings; Words and phrases in websites; Symbols; Computer Generated Imagery; Databases.
This list is by no means conclusive as new forms of IPRs continue to spring up in the digital market due to changing customer needs, technological advancements, innovation and competition.
Problems experienced in the digital space
The digital market, while opening up new marketing channels and avenues for massive income generation, has also created a problem previously unforeseen by most IP legislative regimes. Traditionally, IP right holders protected their rights by preventing third-party access to their creations save under certain conditions which may include the payment of a premium or royalty. In the age of the digital market however, the real problem lies in the ability of an IP right holder to identify third-parties in possession of protected material, and to control the manner of use of such property by the same third-parties. This is further complicated by the ever-increasing number of pirates who derive commercial benefits through the illegal exploitation of the protected material. Couple these with the inability of most organisations to adequately control the manner of use of their property by their own customers and clients; the increasing ease with which pirates and other IPR violators cover their tracks to avoid discovery; the ridiculous ease of copying protected material; the extreme difficulty in enforcing IP laws in the digital market, and the fact that the 21st century individual considers access to information and digital content a fundamental right; and the result is an IP nightmare that has persistently defied all attempts at control and mitigation.
While legislation and other statutory measures have always been the principal means of IP protection and enforcement, the situation is very different in the digital market. Legislation typically prescribes conduct which is illegal, and sanctions same. However, the ability of the authorities to locate and bring a consequent offender to justice is crucial to the effectiveness of the legislation in the first place. It is this latter point that renders legislation largely helpless in protecting IP rights in the digital market.
The question is not whether piracy is illegal; the real question is finding the pirates. If the pirates cannot be found (since they usually cover their tracks and adopt a wide range of technological and administrative measures to stay hidden), then piracy will continue unabated. Indeed, the question is not whether it is illegal to stream protected movies; the real question is how to trace and end movie streaming, and prosecute the facilitators. The question is not whether it is illegal to share protected files for free across the internet; the real question is how to prevent a consumer who has legally purchased a new DVD, from copying same on his computer hard drive and distributing to all his friends online.
How an organisation can protect its ip assets in the digital market
The digital market provides massive potential for commercial profit to legitimate IP rights holders, and, unfortunately, also to counterfeiters, pirates and other types of violators. The use of Trademarks, Patents, Designs and others is absolutely crucial to the protection of the Intellectual Property of any organisation. While protection of IP rights is extremely difficult in the digital market, all hopes is not lost as there have been successful implementation of IP protection mechanisms in other climes which can be adequately utilised in Nigeria.
Instances of such recorded successes includes the 2012 enforcement regarding ‘Megaupload,’ one of the internet’s largest file-sharing sites at the time, responsible for over five hundred million dollars in lost revenue, was shut down by the United States government and its two co-founders arrested and prosecuted. Also, in 2016, ‘Kickass Torrents,’ another file-sharing site responsible for over one billion dollars’ worth of IP violations was taken down by the United States authorities, and its owner arrested.
To ensure adequate protection of its intellectual property in the digital market, a firm/organisation must first of all create an inventory of all its digital marketing assets to determine what can be protected and how. This is a form of IP Audit and is a first and critical step since IP protection mechanisms must begin with a knowledge of what exactly there is to protect.
While understanding legal and regulatory regimes governing IP are critical, these merely provide the IP rights holder with an understanding of the full extent of his rights and how these are assured by the State. Actual protection goes beyond the confines of Statute and extends to practical steps which must be taken by the IP rights holder, to protect his IP assets in the vast and immensely complex digital market.
It must also be noted that breaches of IPR in the digital market are not always at the instance of external 3rd parties, rivals, unconscionable customers or pirates. Many times, breaches are initiated through the inadvertence or carelessness of staff and employees who let the confidential information out to the public through a myriad of ways. Also, staff of the organisation may sell the confidential information to rivals for a price. The latter is more common in cases of corporate espionage.
Steps that can be taken by an organisation to protect its IP rights in the digital market include the following:
Registration of all trademarks. Trademarks are the most widely disseminated IPR in the digital market. It is therefore prudent to ensure that all marks, names and symbols are registered and adequately protected before going out into the digital market.
Mark your IP assets with the symbols ®, “TM”, © or other equivalents. This is to inform the public of IP protection over the materials.
Wherever possible, patent online business methods to prevent duplication by rivals.
Register your Trademark as a domain name. Your trademark and domain name may be inseparably linked. Breach of one may equal breach of the other. This is most important for “dot.com” companies whose businesses revolve around the existence and maintenance of a website or internet domain. For instance, the entire business of Youtube inc. revolves around the website “Youtube.com.” For the business to survive, the website itself must remain the inalienable property of Youtube inc.
Do not disclose patent related information.
Take precautions to prevent inadvertent disclosure of trade secrets. Ensure that any confidential information that gives your business a competitive advantage such as sales methods, consumer profiles, list of suppliers, manufacturing processes, marketing plans, unique advertising campaigns etc. are protected by trade secret law or laws on unfair competition.
The use of Confidentiality and Non-Disclosure Agreements. Every organisation must create a profile of all contacts and corporate relationships which may consequentially result in the dissemination or dissolution of confidential information and ensure that all parties to such relationships sign confidentiality and non-disclosure agreements to safeguard such information. Employees must also sign a code of conduct which will include the protection of confidential information. All these documents create a legal obligation on the part of the parties, to safeguard the organisation’s confidential information.
Physical security measures should be adopted to restrict access to facilities or departments containing valuable proprietary and confidential information.
Encryption: The goal of encryption is to scramble objects and make them unreadable or unusable until they are decrypted. Encryption protects information or content against disclosure or modification both during transmission and storage. When information is encrypted, it is put in an unusable state. For it to become usable, readable or accessible, the user needs a “Key” which is provided by the owner of the information or content. Once this key is applied, the information or content is “unlocked” and is reduced to a usable and readable format or state. Thus, where content is encrypted, illegal copying or replication becomes pointless since such content is unusable. Thus, all the organisation has to do is to control and restrict the use of the encryption key to secure its content and restrict illegal use or access. The organisation can then receive commercial benefits from the content or information by selling, leasing or licensing the encryption key.
Adopting the right business model: The business model an IP rights holder uses may have a significant impact on the degree of violation of its IPRs in the digital market. Business models that leave the consumer or client with too much discretion on the use of the Organisation’s property are particularly prone to abuse in the digital market. By thinking creatively about the nature of his product and the needs of the customer in relation to service delivery and customer satisfaction, an IP rights holder may be able to adopt a business model which would be largely unaffected by the insecurities of digital marketing. An example of such models is “Subscription Purchase.” This model keeps all information and content within the control of the owner. Information cannot be copied nor manipulated by the customer who never gets full control of the content. All that is sold to the customer, via a subscription, is access to the content. Thus, the IP rights holder does not lose control of his product or content, and the customer, while gaining full access to the content paid for, cannot use same for any purpose outside the contemplation of the owner.
In addition to the above, every entity operating in the digital market must deploy efficient IP management strategies to protect its Intellectual Property, regulate its digital marketing strategy, and also ensure that it does not inadvertently violate the IP rights of any third party.
TOLU OLALOYE