Written on January 3rd, 2012 by tasha
In a previous post, we wrote about Social Media Policies even if you don’t do social media. While your business may not be involved in social networking, odds are, your employees are engaging in Facebook or Twitter, YouTube or writing a blog.
You need to be sure they do not violate HIPAA nor say things even in their personal posts that reflect poorly on your company.
In the next few blog entries, I am turning my attention to the legal risks of publishing online. After HIPAA, I would say the next most likely transgression has to do with intellectual property violations.
Intellectual property rights apply to anything you publish (in print, or on your website, blog or Facebook page). Many companies, rightfully so, encourage employees to Like, Share and Comment on the company Facebook page or blog. And certainly your official “post-ers” are employees. In that light, be sure you are clear with everyone about what can and can’t be posted from a legal point of view. You don’t want a lawsuit!
Before we go much further, I am not a lawyer. I am drawing my information from two sources:
• Citizen Media Law Project of Harvard University
• Legal Guide for Bloggers from the Electronic Frontier Foundation
“Intellectual property” is a fancy way of describing “products of the mind.” It is in our country’s interest to encourage innovation, thus the federal government has set up laws designed to protect the rights of innovators. It takes skill (and time and money to develop skill), not to mention talent and creativity to come up with new ideas.
There is also a certain amount of risk (also involving time and money) to perfect new ideas and get them ready for market. Legally, then, the creators deserve to have protection so they can control their “products of the mind” and reap any monetary or social rewards.
How does this relate to social media? Well, you’d be amazed how many blogs I see, or Facebook pages with a Notes section that has out-and-out lifts of other people’s materials. Or graphics that have simply been “borrowed” from another website.
People often type in whole articles and think that by listing the name of the author, they are covered. Not so! (One hospice even copied my whole e-library and entered all 60 pages of it (!) into their company website. They were not intending to break the law. They just didn’t realize that writing on the Internet was not up for grabs!)
Because the Internet has a basic ethic of “sharing,” it’s easy to forget that all the laws of copyright, trademarks and trade secrets apply just as they do in print.
- Copyright: The Citizen’s Media Project aptly describe copyright as “protecting the fruits of creative efforts.” The owner of a copyright has the exclusive right to manage how, when and by whom their work is displayed, reproduced or distributed. Copyright ownership lasts, as a general rule, for about 70 years and can be transferred to heirs or whomever the copyright owner wishes. Writing, photos, drawings, videos, photographs, music, coding for software, all of these are products of the mind that can be copyrighted.
- Trademarks: Your branding is your trademark. It’s usually your name, perhaps a slogan, and often has a symbol (i.e., logo) attached. The idea of a trademark is to keep others from appearing to be you and gaining business advantages that they have not earned. Trademarks can be owned locally by simply having used them in a specific region for a number of years (common law). But for trademarks to be protected nationally, they must be registered with the U.S. government.
- Trade secrets: Confidential customer lists, vendor lists, billing or staffing policies…anything that might provide a competitive edge is considered a trade secret.
When you think of policies to guide employees in their posts, you must think not only about protecting what you have created, but also about preventing your employees from inadvertently infringing on the intellectual property rights of others.
- Using text written by others: As a rule of thumb, you may quote from others as long as you use only a few lines, quote verbatim, and distinguish the passage as a quote (with quotation marks and an acknowledgement of the author). If you want to use more than a few lines of text, contact the author and get written permission. Note any copyrights and declare beside them that the materials have been “Reproduced with permission.” With Internet materials, it is considered polite to include a link to where you found the material originally. (Or use the “Share” feature on Facebook, or “Retweet” on Twitter.) Many authors are very happy to let you reprint their entire article for free as long as you link to their blog, website, or other online presence. The exception to this general permissions rule is that articles published by a government entity are considered “public domain.” Your tax payer dollars paid for them so you can use as much of them as you want and do not need to ask permission.
- Writing your own text: Although there is an official copyright protection procedure with the federal government, simply noting the copyright symbol, the year and the name of your company puts a stake in the ground alerting others to the fact that you consider this copyrighted material. If you are telling the story of a volunteer, or patient or family, you also need get their permission, in writing as their story is their “asset.” This is true not only for intellectual property reasons, but in the case of patients and families, extremely important for HIPAA compliance.
- Using graphics, photos, music or videos created by others: You need to get permission of the artist/creator in writing. It is best to also note their copyright for the material and “Reproduced with permission” somewhere close to the artwork. You can also consider using stock photography sites that offer royalty-free graphics for a nominal fee. You generally do not need to give written credit in this instance, unless you have specifically licensed the materials as “editorial content.” Check with the terms and conditions of the stock photography company.
- Graphics, photos, music or videos that you create: As with written materials, a copyright symbol with the year and name of your company is generally adequate to protect your rights. If you have a fancy graphics company helping you, these works of art can even be digitally branded so if someone lifts it, you can easily identify it as yours. (Like a chip in a stray cat.) It’s always safest to keep written permission on file, even from staff members who have participated in the creation of the work, or are the subject of the photograph, video, etc. If you are using images or voice recordings of individuals in your community, you absolutely need to get their permission, especially if they are patients or clients as this invokes HIPAA privacy protections.
- Use of logos (trademarks): You should have a clear style sheet available to all employees that delineates how, when and who can post your logo. Similarly, caution your employees to never lift the logo of another company and post it on your social media account. Even if the company is an allied business or strategic partner, they need to be consulted before their trademark is published in your context. (It’s theirs to share, not yours…Do unto others…)
- Precautions regarding trade secrets. Certainly in elder care, it’s different than for retail or manufacturing. You don’t have 13 specially selected herbs and spices as part of your secret sauce. Still, it does not hurt to be clear about the kinds of things you think are inappropriate to share. You have competitive advantages, and your employees may have access to those. An employee could inadvertently reveal something that is very strategic. Sadly, a disgruntled employee can also make potentially damaging revelations. (And if they are no longer in your employ, you don’t have the most obvious options.) Consult your attorney about including a passage regarding confidentiality of trade secrets as part of a hiring document. It may not stop the revelation from being made after a termination, but it may give you some teeth for a cease and desist order.
What have you done to help your employees avoid intellectual property infringements?
Posted in Blogging, Facebook, Social Networking, Twitter, YouTube
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