When the Internet first began to shape popular culture more than a decade ago, few could have anticipated the astounding impact it would have on commerce, education and even social relationships. Unfortunately, the Internet’s ability to foster commerce and creativity often collides with preexisting laws that are not well-suited to this new medium. As its use and applications continue picking up speed, the courts and legislators responsible for developing Internet-related law must wonder if they will ever catch up.
One area where this is readily apparent is intellectual property law, especially copyrights and trademarks. The law has been slow to adapt, many issues remain unaddressed and many of the laws out there are punitive. In this global, instantaneous network of human creativity, laws that are too restrictive or too punitive could jeopardize the intellectual wealth and dynamism that make the Internet what it is today.
As the law struggles to adapt, businesses (and individuals, for that matter) would be wise to follow the traditional tenets of intellectual property law — a field designed precisely to encourage individual entrepreneurship and creativity. Then, as the law adapts, so must Internet participants.
Essentially, intellectual property laws protect the rights one has when he or she creates something new. They can apply to the written word and visual arts, computer programs and manufacturing processes. In the United States, the laws have fostered creativity because people can make money — sometimes lots of money — from the new things they create.
Intellectual property encompasses
- copyrights (literary, musical, dramatic, choreographic, pictorial or graphic, audiovisual, or architectural work, or a sound recording);
- trademarks (words, names, symbols, devices or any combination thereof used to identify and distinguish goods or services of one company from those sold by others);
- patents (to protect new inventions, including devices, methods, processes or compositions of matter); and
- trade secrets (confidential business practices or information).
Currently, businesses that engage in online activities, whether merely promotional or fully interactive, find copyright and trademark laws to be most problematic.
Copyright infringement is perhaps the most pervasive problem on the Internet today when it comes to intellectual property. The World Wide Web is a huge engine of creativity, comprising millions of participants sharing information back and forth. Routinely, information is passed from one party to another and then another. Eventually, some 40 or 40,000 connections later, it can be difficult if not impossible to attribute the information to the original source.
To protect your company from copyright infringement, always do your best to attribute information acquired through other parties, including those on the Internet. Familiarize yourself with the protections offered by the "fair use" exception to copyright infringement.
If yours is a site that operates online bulletin boards, auctions, chat rooms and links to other Web sites, you’ll want to be familiar with the Digital Millennium Copyright Act (DMCA). Under the DMCA, your company is protected from copyright infringement on your site that stems from user-generated content so long as you inform users of your copyright-compliant policies and adhere to the notice and takedown procedures outlined in that law. (Specifics can be found at http://www.copyright.gov/legislation/dmca.pdf.)
Trademarks are especially tricky nowadays. It used to be that separate companies in Wisconsin and California could provide similar local services under similar business names or with like logos or slogans and never even know the other exists. Through the Internet, these companies can and do collide with surprising frequency. And one (or both, if a new player comes along) may be forced to change its corporate identity.
The general rule here is that whoever goes to the trouble to register the trademark first owns it. The advice to business owners: If you’re serious about your company name, logo or slogan, get it trademarked.
In addition, as tempting as it may be, business owners should resist the urge to include unrelated global or national brands in their Web site meta tags. This is a tactic many companies have used to draw traffic to their Web sites, attempting to capitalize on popular search terms — and the intellectual properties of other companies — to promote their own brand. But it’s seldom worth facing lawsuits from these deep-pocketed corporate giants. Keep in mind that if they’ve considered their brand important enough to invest millions of dollars in promoting it, they won’t hesitate to invest what’s needed to protect it.
Today, we know the Internet allows businesses to find information, get and share ideas, sell products, bond with other sellers and find good vendors. It’s an important, if not essential, place to be.
What we don’t know, however, is how social media will affect intellectual property law (and vice versa) or what new legal challenges await. In the meantime, all we have is traditional law, good legal advice and our own ethical sense to keep us on a somewhat safe footing.
For more information on cyber law in Wisconsin, contact Michael Stoker at 608-784-5678.
Reprinted with permission from The Business News, July 2009.