Presenters were Duncan Calow, Gianluigi Marino, Laura Chittick, Richard van Schaik and Richard Flaggert

We recently hosted a webinar on monetising social media and associated legal issues. For those who could not attend, we summarise the main conclusions:

  1. Digital Rights Management (DRM) remains a controversial concept. Its ability to successfully take account of various factors including copyright exceptions, private copying, consumer rights, privacy, interoperability and accessibility remains open to debate. DRM, however, still offers rights holders the promise of “an answer to the machine in the machine” and just as importantly (to continue the less well known part of that quotation) in today’s media landscape “not so much how to prevent access and use as how to monitor access and use.” The rise of social media has seen DRM develop into various concepts and techniques. As use of social media morphs, whether around new applications or as more rights holders begin to distribute premium content through those channels, DRM will no doubt develop further. It will be the channels as well as the rights holders setting the agenda – in social media it is the platform terms that matter alongside the law. Failure to take that into account may mean, with or without DRM, the content is unavailable to anyone.
  2. Data – Social media allows us to collect an enormous amount of data and privacy issues are trigged where such data is considered personal data. The new European general data protection regulation should be approved within the next spring and will provide for the new (digital) framework entailing  new rights, strengthened safeguards and higher sanctions among other things.
  3. The Safe Harbor scheme is now invalid and can no longer be considered a legal basis for transferring data between EU and US. Standard Contractual Clauses and Binding Corporate Rules can still be used, however, authorities are still considering alternative transfer mechanisms. If no solution to Safe Harbor is found by 31 January 2016, the authorities will start enforcement.
  4. Legal aspects – when using social media for advertising and direct marketing purposes, at least the same rules apply as for other online and offline media: third party copyright, portrait rights and trademark should be respected, data protection rules apply as does general advertising rules (e.g. the advertiser should be clearly identifiable). A Social Media Code was introduced in the Netherlands last year requiring the disclosure of the relationship between advertiser and distributor (i.e. the person who post a communication for the advertiser’s benefit). This can be done by using texts like #adv. or #spon.
  5. Recent trends
    • The trend of brands acquiring content creators in the social space  expanded dramatically in 2014/15. Multichannel Networks (“MCNs”) have been a particular target (and source of value) for acquisition by traditional media companies as they (i)  provide an effective way for traditional brands to reach a younger audience (ii) have proven nimble and adept platforms for experimentation with new programming formats and content types; and (iii) provide an almost instant global market, absent many of the restrictions attendant legacy linear and digital deals to which many traditional media companies are subject.
    • Brands are increasingly producing premium content themselves, including via custom shows, signature channels, and a push into promotion via MCN channels, for closer, more targeted associations with consumers, and for control over data.
    • YouTube recently announced an online, subscription-based ad-free video service, priced at $10/month. Consumers will get original content from various sources, including Time Warner, Fox, and NBC Universal. YouTube has long been the dominant video ad revenue player worldwide, and while this will remain the case, its market share will diminish as competitors such as Facebook and Twitter join the fray. For media companies, YouTube Red presents a chance to leverage the YouTube platform globally, and obtain a share of ad revenues.