Written by Sarah Zivoin with contributions from Tony Duarte and Marian Hebb.

With the increasing popularity of social media platforms as a means for creative expression and sharing of ideas, invariably questions arise as to what right do you have in the content you post and in other content you may find online.  This article will break down factors for consideration before you post content and afterwards.

Before you post

When using mainstream social media platforms, you agree to certain terms and conditions of use.  These terms and conditions may change over time and are posted on their sites.  One common requirement to meet when posting is that you have the right to post the content.  This requirement seeks to prevent claims of copyright infringement, but there are additional concerns.  Consequently, before you post, ask yourself:

1. Does your post have content that you did not create and that may use the intellectual property or other rights of others?  If yes, you may need to obtain approval from anyone who created, owns and has intellectual property or other rights to that content.  For example, if you use music in the background of a video post that was not provided and authorized for use by the social media platform, you may need to obtain permission to use copyrights in the music.  Some social media platforms may enter into mass licence agreements with the songwriters and music publishers that have the rights to a catalogue of music as well as mass licenses with the record companies that control rights to a catalogue of  sound recordings.  These mass licenses may include the music and recordings you want to use on that platform. So, if you are using music clips authorized from the social media platform, you may not need to obtain any additional permissions from the songwriters, publishers and record companies that are rightsholders – but if in doubt you should check to see whether you need to obtain a licence for such rights.  

If creating video content, it is easy to accidentally include intellectual property owned by others or the visible identification of individuals or businesses simply by being unaware of what is in view.  In addition to the issue of obtaining a license to use the copyright in such things as photographs and paintings depicted in your video, you should also consider whether there may be invasion of privacy of individuals, whether they are featured or are merely identifiable in the background.  Any of these kinds of use may create a need for you to either remove or digitally mask these in editing or obtain approval of the individuals or companies visibly identified or the logos, trademarks, or other intellectual property which may be reproduced within your content. 

2. Is your post for commercial or non-commercial purposes?   If your original post is a new work that uses someone else’s existing work which is publicly available, Canada’s Copyright Act may shield you from a claim of copyright infringement if:

• your post is solely for non-commercial purposes;

• you mention the source of the existing work if it is reasonable in the circumstances to do so;

• you reasonably believe that the existing work is not infringing copyright; and

• your post does not have a substantial adverse effect, financial or otherwise on the existing work and is not a substitute for it.

Whether your post is for non-commercial purposes is also relevant when using content from the media libraries on social media platforms.  The reason for this limitation is that the rights these platforms receive from the original creators or other owners of works may be restricted to personal or non-commercial use on the platform.  Since the social media platforms cannot provide greater rights in the works in their media libraries than they themselves hold, some copyright content available to use on the platform is only for the personal use of platform users for non-commercial purposes. 

3. Is how you are using the content covered by the fair dealing exemption in the Copyright Act?  Using someone else’s copyright in Canada without their permission may be considered “fair dealing” under Canada’s Copyright Act and fair dealing may be a defence to a claim of infringement if it is for the purposes of research, private study, education, news reporting, parody or satire. The reasoning behind this exemption from copyright infringement – more often described as an “exception” – is that the use may be for societal benefit. When evaluating whether the “fairness” test of fair dealing has been met, the courts will look at:

• the purpose of the dealing (e.g., was the post for commercial or non-commercial reasons?);

• the character of the dealing (e.g., was the post widely distributed?);

• the amount of the dealing (e.g., how much or what proportion of the work copied is in the content of your post? – generally, the less amount of the work used, the better);

• any alternatives to the dealing (e.g., could you have used something other than reproduced material from the work copied in your post?);

• the nature of the work (e.g., is it factual or fictional work used in your post? – using material from a factual work is more likely to be considered fair); and

• the effect of the dealing on the work (e.g., is there any effect on the market value of the work copied?.

There may be other factors that help you to assess “fairness”.  It is not always easy to be objective when you consider factors that can make one kind of proposed use “fair” (and not an infringement of copyright) while another proposed use is unfair (and will be an infringement).  Since the copyright owner has the right to take any use of fair dealing to court if they dispute it, this exception should always be carefully and cautiously considered.  

4. Does your post contain any disparaging content? Care should be taken to avoid referencing an individual or company in a negative light. If your content or any content created by others which you repeat refers to an individual or company in such a manner as to lower their reputation in the eyes of your followers or others, the individual or company may have a claim against you for defamation. 

After you post

Once you post on social media, you are still the copyright owner of your post if it is an original work and anyone who had rights in part of the content of your post will continue to retain their rights.  For example, if you use copyright content from a social media library in your post you will not gain any ownership of such content. Rather, the social media platform will continue to hold rights in that content within your post. Nor will you have the right to post your post elsewhere without getting any necessary permission.                             

Generally, the terms and conditions of social media platforms state that when you post original copyright material on its platform, you grant it a licence to use your post. Such a licence may allow the social media platform to host, use, distribute and copy your post and to create “derivative works” (i.e., works based on your work).  It will also allow other users of the platform to use your post, including copying your post and creating derivative works based on your posted copyright material. This permits re-posts, likes of your post or other interactions with your post on that platform.  

The licence granted to a social media platform for your post will last as long as you don’t delete the post from their platform.  Once you do, it does not automatically delete your content that is posted collectively with material of other users such as in a shared album or that is re-posted by others. In such instances, only when those other users delete their post from their account will your post be completely deleted.  

If you do not want your posts to potentially live indefinitely on a social media platform, you may wish to reconsider how you share your copyright content online.  For example, you may want to create a website which provides notice of your copyright to viewers.  Your website may have certain restricted areas with access through password protection which limits who can gain access to your content. This method may better protect your copyright but then has the potential to not have the exposure that you would have had on popular social media platforms.  When deciding how you want to share your copyright content, you will need to weigh these considerations and determine what is your ultimate objective. 

This article is informational and not intended as a substitute for legal advice.

Written by Sarah Zivoin.

So, you want to be an influencer? Tips for compliance

Creating in a digitized world has opened the door to opportunities once unthinkable for creators. Developing content online, whether it be blog, video or photography, can generate an unexpected increase in viewership following you.  Such popularity can cause your followers to rely on your content and give your opinions more weight than the opinions of others. This influence has value which advertisers have acknowledged by offering to compensate online creators to develop or share content about the advertiser’s brand.  Through influencers, an advertiser is able to reach an audience to which they may not have had access when using traditional media. 

Given the effectiveness of this form of advertising, influencer marketing has caught the attention of regulators to ensure that the interests of the end consumer are being maintained.  These regulators include Canada’s Competition Bureau, whose role is to ensure compliance with the Competition Act, as well as the Canadian advertising self-regulating organization, Ad Standards.  They advise both creators and advertisers alike on compliance measures when creating influencer content as both are considered responsible for upholding the requirements of the Competition Act.  

Below are some common tips to follow as an influencer:

Clearly disclose material connections with the business, product or service being promoted

• If you have a family connection with the business or receive something in exchange for your content posted, your opinion may be considered biased by your followers.  Providing disclosure of any such material connection helps your followers make a more educated judgment when evaluating your opinion.  The disclosure should be understandable, apparent, visible on all devices without need to search for it and made on each social media platform used.  Such disclosures need to travel with the content if it is shared, so they are not lost.  Depending upon the content, both audio and visual disclosures may be necessary.  
• Use of hashtags such as #ad or #sponsored are common acceptable disclosures of a material connection. 
• Additional tips with illustrative “do’s and don’ts” regarding acceptable disclosures on various social media platforms have been published by Ad Standards in its Influencer Marketing Disclosure Guidelines. The Influencer Marketing Disclosure Guidelines is a helpful resource to review when determining how to make disclosures for your content. 

No false, misleading or disparaging content

• Any statements you make within the content you post about a business, product or service should be based on facts, on your actual experience, or through proper and adequate testing.  If you are endorsing a business, product or service, you need to have used it.  Further, care should be taken to ensure that the statements made are not too broad and do not go beyond your own experience with it.   
• Care should be taken to avoid referencing an individual or company in a negative light. If your content or content from anyone else which you repeat refers to an individual or company in such manner as to lower their reputation in the eyes of your followers, the individual or company may have a claim against you for defamation.

Products featured in your content may be subject to government advertising regulation

• In promoting, either directly or indirectly, the sale of any food, drug, alcohol, tobacco or cosmetic products, there are various Canadian laws which regulate their advertising. These laws are complex, so much so that prior to broadcasting an advertisement where these products are featured, advertisers will seek preclearance from organizations to ensure compliance. For example, Ad Standards provides pre-clearance services for the advertising of alcoholic beverages, cosmetics, food and health products. Should you decide to post content for an advertiser who sells a regulated product, it is imperative that you provide a copy of your content to the advertiser for their review prior to your posting online in case there is anything in your content that will violate any product-specific law.   

Watch who or what is featured or visible in your video

• If creating video content, you should be careful that no individual or company is identifiable in it unless you have received their prior approval, preferably in writing. This also includes logos, names or other trade-marks that are visible in your content.  If you do not receive approval, you may need to edit or digitally blur your video to remove or mask such images prior to your posting. 

As compliance is a shared responsibility between influencers and advertisers, it is advisable that a written agreement is made between you, as the influencer, and your advertiser to state what type of influencer content is deemed acceptable as well as to accept your plans to disclose any material connection to the content. If you are to promote a regulated product, your agreement should also include protection for you in case, unbeknownst to you, your content violates any product-specific law. If, after the content is posted, the advertiser no longer wishes to be connected to it or if you, as an influencer, wish to disassociate yourself from the advertiser for any reason, the agreement may provide you both with the right to remove the content from whatever platform on which it was posted.  This agreement is also a good place to state if either of you is expected to be exclusive to the other and for how long, whether the advertiser expects you to only endorse its product within a particular category of similar products on the market or you expect the advertiser to only send its products to you for endorsement within a particular category of influencer.    If each of you is strictly non-exclusive to the other, then that is also important to put into an agreement.  Of course, whatever you are to be paid or receive in exchange for your endorsement should also be in an agreement.

Most advertisers are careful to use only influencers with the right reputations to profile and build their client’s brand.  You have a personal brand as an influencer, so you need to be careful to protect and build your own brand.  You need to be careful to avoid endorsing a shoddy or unsafe product or service, a disreputable business, or a fraud.  Do not rush to use your influence without thinking about the product, service or business you are endorsing.  If you are concerned about the risks you may be taking by endorsing certain products or services that can cause serious injury or loss to your followers if they do not work properly, have a conversation with the advertiser about being included in its insurance coverage or with an insurance broker about insurance of your own to protect you. 

This article is informational and not intended as a substitute for legal advice.