News & Insights

It’s the year 2020, and we now live in a disrupted Coronaworld full of way too many puzzles and self-proclaimed bakers, the House Party app and constant ‘can you hear me?’ FaceTimes with friends and family.

As a result of our current (but not forever) reality, audio visual services (AVS) such as Zoom are booming (or should I say zooming?), as the workforce moves ‘online’ to continue business as normal (as possible) during #iso.

A key example of this is being seen in the fashion industry, with photographers, hair and make-up artists and models conducting photo shoots through AVS, which include platforms such as Zoom, FaceTime and Messenger. However, questions have arisen as to what this means for authorship and ownership. Helpfully, the MK team have already considered these issues in a recent insight, which you can access here.

terms and conditions of AVS

There is another issue that businesses need to consider when using an AVS: what do the terms and conditions (T&Cs) of the AVS say about intellectual property (IP)?

This is an important question that must be front of mind for any business when considering the use of an AVS. Depending on the AVS’ terms, the business’ IP may be at risk of being licenced to another person/entity (without the business knowing), a collaborative work may result in IP rights not being retained entirely by the business, or worse still the confidential nature of the IP may be lost preventing the ability to secure IP rights such as patents and registered designs.

zoom

Zoom is currently one of the most common AVS platforms used. As virtual meetings become more and more common due to social distancing restrictions the uptake in the use of Zoom has skyrocketed. Unlike many other AVS platforms, Zoom’s T&C’s helpfully stipulate what happens to a business’ content and how copyright protection is afforded.

In using Zoom’s AVS platform, a user agrees that they are solely responsible for the content that is sent or transmitted, displayed or uploaded by the user, and that where necessary, consent from a third party has been obtained to use content belonging to that third party.

Zoom also prescribes that –

1. a user may not post, modify, distribute, or reproduce in any way material in which copyright subsists, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights; and
2. it may deny any user access to its service where that user has allegedly infringed another party’s copyright.

A link to notify Zoom of a copyright infringement is also included in their T&Cs, providing businesses with the tool to report unauthorised use of their IP.

Most importantly, there is no grant of a license to Zoom or any third party (including the other meeting participants) enabling Zoom or a third party to lawfully use or reproduce any of the content uploaded or shared through this AVS.

It’s evident the retention and protection of IP rights when using Zoom remains pro-business!

microsoft teams and skype

Microsoft Teams and Skype are both leading alternatives to Zoom, and both happen to be Microsoft products. Accordingly, they are both regulated by the Microsoft Services Agreement. This agreement, the terms of which are accepted by you (and your business) when you use the AVS, includes the following terms (hidden in various sections of a complex, lengthy labyrinth of policies, terms and conditions):

1. Microsoft retains a copy of, and may use, any and all content you (or your business) uploads or creates on the AVS. This includes communications with others (webinars, calls, chat, etc.); and the files, photos, documents, audio, digital works, livestreams and videos that you upload, store, broadcast or share through the AVS (Your Content).
2. While it’s made clear that you own all Your Content (and you’re responsible for it), Microsoft specifically state in their terms that the use of the AVS will provide –
   a. other people with a license to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display Your Content without compensating you; and
   b. Microsoft with “a worldwide and royalty-free intellectual property license to use Your Content, for example, to make copies of, retain, transmit, reformat, display, and distribute via communication tools Your Content on the Services.”

Interestingly, the terms also state that “If you do not want others [or Microsoft] to have that ability, do not use the Services to share Your Content”.

Helpfully, Microsoft do provide the ability to notify it of third party infringement of your trade mark rights or copyright, though this will only be of use if Your Content is republished on a Microsoft Product.

so, can I zoom, skype, chat or should I just pick up the phone???

There are risks inherent in any method of communication: be it an email sent to the wrong recipient, or a confidential conversation overheard by a passer-by. Risk assessments are made by you every day, and when it comes to the use of an AVS, for the majority of the time, for the majority of businesses, it won’t matter which AVS you use to keep in contact during isolation. They will digitally connect you with your colleagues to enable business to proceed as normal (as possible).

However, for confidential communications be it a video conference regarding a new patentable invention, the design of a new fashion garment, or the launch details for a new product you should pay closer attention to the T&Cs as any ‘authorised’ disclosure may have disastrous consequences for the protection and subsequent commercialisation of that IP and its associated rights.

In these circumstances, irrespective of the AVS platform you wish to use, you should utter a confidentiality statement at the beginning of the meeting and then invite those who don’t wish to be bound by the terms of confidentiality to leave.

key takeaways

There are four key takeaways for businesses:

1. Be aware of the AVS’ T&Cs and what the IP terms mean for your business – the T&Cs are likely to specify how IP shared, used or created while using an AVS is to be treated. If the IP terms prevent you from retaining your IP rights or provides third parties with licenses to those rights, you should give serious consideration as to whether you use that AVS.
2. Make sure your IP clauses in all agreements (internal e.g. employment contracts, and external e.g. collaboration agreements) are up to date and appropriately document how your business’ IP is to be treated – this should include any future IP created through employee/employer collaboration and any other type of collaboration, including but not limited to, services and software arrangements.
3. Ensure a collaboration agreement exists to regulate how multi-party content, created through collaboration (especially on a document sharing AVS, e.g. Microsoft Teams, which allows depositing, editing and sharing of documents), is owned and commercialised.
4. Ensure you verbalise an appropriate confidentiality statement at the beginning of each meeting, webinar or presentation, especially when external or third parties are present.

If you require assistance with the preparation of a suitable confidentiality statement, or you wish to ensure your IP is protected properly when using an AVS, please contact Mark Metzeling or another member of our expert IP team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.