The European Union Intellectual Property Office (EUIPO) released its Social Media Discussion Paper in June of this year, forming part of a broader attempt to address IP infringement activity on digital platforms.

Focusing specifically on new and existing trends in using social media for IP infringement activities and good practices to address them, the discussion paper supplements EUIPO’s earlier report on monitoring and analysing social media in relation to IP infringement, and follows a similar publication by EUIPO on domain names compiled in March 2021.

As social media diversifies and rises in popularity, the development of new strategies to misuse its unique combination of functionalities for the IP infringer’s own purpose has matured over time. Due to social media’s novel features, including its range of communication offerings (public, semi-public and private) and content formats, it creates unique possibilities for infringers to attempt to circumvent IP protection measures. This poses a number of issues given the different regulatory frameworks applying to social media’s public or private communications, which limits the ability of IP owners, social media companies and law enforcement authorities to cooperate and take action, particularly when private communication functionalities are involved.

A summary of the main points set out in the Paper are outlined below:

Trends in IP infringements conducted over social media

• New and increasingly popular functionalities, such as livestreaming, make it easier for infringers to illegally share content.
• False advertisements displaying counterfeit goods are easy to share on social media, especially with the rise of influencer marketing.
• ‘Burner’ and ‘scam accounts’ are commonly used to attract traffic towards an IP-infringing website. Often ‘spambots’ are deployed to create an interaction with users to promote counterfeit goods.
• The availability of closed (invite-only) groups and encrypted messaging on social media platforms create more opportunities for IP infringing activities

Challenges created by these IP infringements

• Regulatory requirements differ across social media functionalities. For instance, public and private content are subject to different rules. This makes collaboration between social media platforms and IP owners complex to manage.
• Infringers exploit various features of social media platforms, including ephemeral content, to evade IP investigation techniques. Ephemeral content is temporary and leaves little digital trace.
• Decentralised social media platforms pose a particular risk for IP enforcement since there are no central authorities to govern compliance.

Good practices for shielding IP rights from infringers

• Preventative measures include using ‘terms and conditions’ or ‘community guidelines’ to set expectations and form a contractual obligation for users around IP infringement. User profile verification can be employed to reduce the prevalence of ‘burner’ and ‘scam accounts’.
• By providing channels for IP owners to report infringement, Notice and Action (N&A) mechanisms are an effective reactive practice. Other measures include IP protection programmes which allow rights owners to search for infringements in bulk. However, it is not yet possible to apply these tools to ephemeral content, hashtags or usernames.
• Experts highlighted good practices by social media platforms that invest in automation, particularly artificial intelligence (AI) technology, to boost their success of detecting IP infringements.

The Paper outlines the difficulties of tackling IP infringement over social media, however not all challenges addressed are necessarily new and affect other service offerings, such as e-commerce and advertising. Nonetheless, regulators, social media providers and IP owners themselves need to be alert to these challenges and implement good practices wherever possible going forward. While there is more work to be done, the possibility of increasing automated technology in this area is enough cause for optimism.

The Social Media Discussion Paper can be found here.

Written by Katrina Baxter and Eleanor Dodd