Monetizing and protecting digital revenue streams during COVID-19 (and beyond)

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In this COVID-19 world, many businesses have adjusted their service offerings to accommodate physical distancing protocols. The market segments that have moved to an online platform are growing daily. Gyms are offering fitness classes online; universities and colleges are providing lectures online; musicians are giving performances online; summer camps are offering their activities online; and many companies are exploring ways to use machine learning and artificial intelligence to analyze their existing data to make their business processes more efficient and sometimes derive new revenue streams. Some businesses have begun offering digital subscription services and others have ramped up existing online content. In this article, we outline 10 tips to protect this new revenue stream.

Tip 1: Secure the copyright. Copyright subsists in original literary, dramatic and artistic works. This means that the video recording of a lecture may be protected by copyright as does the handout detailing the key takeaways from the class. However, the company offering the online class may not own the copyright in the recording. If an independent contractor made the recording, or it was recorded by an employee who was not initially retained to make videos and this activity falls outside the scope of her employment agreement, the employee author may have a claim to the work, and absent a written assignment by the independent contractor author in favour of the business owner, the independent contractor owns the copyright in the recording not the business owner. It is important you secure copyright assignments and moral rights waivers from the author while the relationship is positive. Doing so will allow the company to continue to use the video after the author departs from the company, or the relationship breaks down.

Tip 2: Release. While you are securing the copyright in the recording, you may also wish to, if desirable, secure a release from the author ensuring she authorizes your use of her likeness to promote the company together with the recording.

Tip 3: Registration. Once you have copyright, you may consider registering it. This is an inexpensive and quick process. Although you do not need a copyright registration in Canada to have copyright, securing a registration creates a presumption that you own the copyright, which can be useful in dispute resolution alleging infringement.

Tip 4: Notice. Regardless of whether you secure a registration, you should provide notice to third parties that you retain copyright in the work. This can be as simple as putting a notice at the bottom of the page or a watermark on the work that includes the date the work was created, the owner of the copyright and a statement that all rights are reserved by the copyright holder.

Tip 5: Password protection. While this may seem obvious, ensuring that content behind a paywall can only be accessed with a secure password ensures that only those that subscribe to the service can access the video content. Requiring that passwords change frequently may deter users from sharing login credentials with freeloaders.

Tip 6: Consider private vs. public. If you are posting these videos on social media, do not post them publicly (unless you do not care if they are reproduced without consent). If you are posting them publicly, you may wish to make them available for a specified time before they are taken down.

Tip 7: Digital locks. Separate and apart from copyright infringement, the Copyright Act prevents the circumvention of “technological protection measures” (aka digital locks). Placing digital locks on your materials that prevent the copying, sharing, or downloading of your copyrighted works prevents unauthorized reproductions. It also provides you with a separate actionable wrong to seek damages if users engage in illegal conduct by circumventing the digital locks.

Tip 8: Encryption. The copyright owner or authorized licensee of the recording may consider deploying encryption as another technological protection measure, which allows digital works to be scrambled so that they can be unscrambled only by legitimate users.

Tip 9: User agreements. Before subscribing to your digital service, have users agree that they will not share passwords with third parties, make reproductions of the videos, or circumvent technological protection measures described above. Reminding users about these obligations may deter this unsavoury or even illegal behaviour and adds another basis to seek legal redress if things go awry.

Tip 10: Liability. While users are signing agreements, ensure that users are warned about potential liability and confirm that they assume such risks. Doing so may limit liability if a student breaks an arm while failing at a tree-pose in yoga class. This is also a good time to revisit your company’s insurance policy to ensure that this streaming service is covered by your existing policy (and if not, reach out to your insurer to add a rider to extend your coverage).

Every business is different and these tips are not a one size fits all.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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