Companies are spending more time and money than ever before generating creative, engaging content. The digital era has made content limitless and methods of engaging consumers almost limitless. But the law is not limitless – it still has bounds, some of which were established long before there were computers, the internet, or discussions about augmented reality and virtual reality.
Law lagging behind technological advancement is nothing new. In fact, every industry that has grown in this country has experienced the frustration of antiquated laws. Digital advancements are no different, but protecting digital content can be more aggravating because the life cycle of digital content is often short, and the barrier to entry in the digital space is low. Anyone with a smart phone can copy digital content and repost it somewhere.
So how do you take advantage of antiquated laws to protect your content? It takes creativity and reliance on several different areas of law.
Copyright is the most familiar source of protection for digital media, but it can be the most frustrating source too. The copyright statute has not undergone a major update since 1998. The Digital Millennium Copyright Act (DMCA) was signed into law in 1998 to implement a treaty from 1996. To give the age of these statutes some meaning – the first-generation iPhone was not released until 2007.
The DMCA provides certain safe harbors, including those for internet service providers and internet intermediaries that allow third parties to post content on their site. The safe harbors allow internet intermediaries to avoid liability if, upon receiving notice from content owners of infringement, they act expeditiously to remove the purported infringing material. Providing notice to an intermediary and pursuing the removal of infringing content is often called a notice and takedown procedure. Some intermediaries have elaborated on the process and have established one by which opposing claimants can adjudicate their disagreement over infringement, or content owners can monetize infringing content rather than pursue a notice and takedown.
Through the notice and takedown procedures and related safe harbors, the DMCA places the burden of policing infringements on the content owners, and not on most platforms for digital media. In order to enforce copyrights against infringements on most platforms, an owner has to engage in the notice and takedown procedures dictated by that platform. The fact that a particular platform may be broadcasting a massive amount of infringing content does not typically shift the burden off of the content owner.
Once the notice and takedown procedures begin, they are not automatic. A content owner may have to wait, sometimes for days, while the intermediary evaluates the copyright claim and makes a determination about taking down the content. For content that has a short life span, the notice and takedown process may outlast the value of the content. Because the process for pursuing copyright enforcement requires a lot of administrative and legal burden, relying on copyrights to protect digital content requires an investment of significant resources in monitoring infringements and issuing takedown notices that meet the requirements of the DMCA.
While trademark will never replace copyrights, it can be a powerful complement. Trademarks are terms, phrases, or logos that identify the source of goods or services. For instance, "Venable" is a trademark. Trademarks inevitably make their way into content. The straightforward trademark could be a logo that appears at some point on or in the content, or leads into or concludes content. For instance, ITV places a logo on its YouTube videos in the top left-hand corner – it does not obstruct the view of the content, and it is easy for viewers to see.
The trademark statute gives a registered owner of a trademark the exclusive right to use the trademark in commerce. So, if someone rips content with a trademark and reposts it somewhere, that infringer is most likely infringing exclusive trademark rights. There are no safe harbors for service providers in the trademark statute, and, depending on the circumstance and the use, an intermediary may be as liable as any others in the broadcast chain. Practically speaking, however, the burden to police trademark infringements still falls to the content owner.
In certain circumstances, design patents can help protect digital content and especially features in content that may be reused or otherwise have long-term value. Design patents are granted to protect the ornamental features of functional items. In the digital media context, this can mean a particular website skin or layout for content if it is new or novel. For instance, Apple was awarded a design patent directed to its slide-to-unlock feature for the iPhone.
Design patents may not be commonly sought or granted in digital media, but they should not be discounted. Traditional media companies and studios have long sought patent protection for their technological advancements, and digital media should be no different, except that instead of seeking protection for a new camera rig, digital media companies should seek protection for the ornamental appearance of their content or perhaps special digital effects. Regardless of the source for protection, early registration of rights will always be critical to the success of enforcement. It pays to think strategically about the type of intellectual property rights that will be most useful for the content in question.