In this episode of Not So Risky Business podcast, you’ll understand all the different kinds of legal considerations that are relevant for creating and selling digital products. In this episode, we will talk about:
- Copyright Protection: Include a copyright notice at the beginning of your digital products to inform users that the content is protected under copyright laws. This can help establish intentional infringement if someone copies your work. Additionally, include a copyright notice in the footer of your website.
- Fair Use Doctrine: Consider creating a separate page on your website or course area outlining what constitutes fair use of your content. This can help you control the use of your content and potentially prevent misunderstandings regarding fair use. Keep in mind that fair use determinations are ultimately made by courts.
- Addressing Infringement: Be prepared for the possibility of copyright infringement, even with precautions in place. Having clear policies and notices can help you take legal action if necessary, and protect your digital products and business overall.
- Trademark registration: Consider registering your trademark if you’re not a hobbyist, and, instead are running a business
- Refunds: Will you offer one or not, and how will you handle the situation
- Accessibility: Think equally accessible content for all
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[00:00:00] Mariam Tsaturyan
You are listening to Not So Risky Business podcast where we make legal easy for you by unlocking access to essential legal information, training and strategy for online businesses, coaches and entrepreneurs. I'm your host, Mariam Tsaturyan. Welcome.
[00:00:24] Mariam Tsaturyan
Welcome back to another value-packed episode. Today we're going to talk about legal considerations for digital products and or digital creators.
[00:00:36] Mariam Tsaturyan
If you're an online business, you probably already have bunch of digital products, whether they are eBooks online courses, memberships, or if you don't have them, you are well on your way to creating. And if you're not, you should really consider doing that because most of the fun in online business comes from digital product [00:01:00] regardless.
[00:01:00] Mariam Tsaturyan
Today we're going to talk about legal considerations for those, and trust me when I say there are plenty legal considerations if you wanna do the whole digital product market, correct. . So to begin with, we're going to cover the foundation. Think of this like the back rooms, right? Think of this like the behind the scenes area of your digital product, where you need to make sure everything is compliant before you actually.
[00:01:30] Mariam Tsaturyan
Start building on it and creating your digital products. Of course, I'm talking about your website compliance issues, because if your website is not legally compliant, is not legally protected, it defeats the purpose of creating your digital product because then you are just adding one layer on top of each other where you're not legally protecting your business.
[00:01:54] Mariam Tsaturyan
And my friend, this entire show, Is about legally protecting [00:02:00] your business, so it would defeat the purpose. Before I get into the details of today's episode, I do need to do my legal disclaimer really quickly here. My name is Maryam Saurian. I am a licensed and practicing attorney. However, I am not your attorney.
[00:02:18] Mariam Tsaturyan
Nothing I say during the episode of this show are to be taken as legal advice. They are for informational and educational purpose. Only if you need legal advice for your specific circumstances, please consult your attorney. If you don't have one, contact me and I'll be happy to get you in touch with someone who can help you.
[00:02:39] Mariam Tsaturyan: Now that that's out of the way. Let's begin talking about your website compliance issues, because we need to make sure that this very first level, this basic level, is taken care of before we start adding on to that and building our digital products. No matter what they may be. with website [00:03:00] compliance.
[00:04:16] Mariam Tsaturyan: Are you actually, and five, are you actually complying with GDPR regulations? Which is, which is the general data protection regulation comes out of the European Union. Are you complying with the C C P A, which is the California equivalent? Two gdpr are you complying with the Virginia privacy regulation and so on, right?
[00:05:15] Mariam Tsaturyan: For example, if collecting your. Subscriber's phone number is not absolutely essential for your business, meaning you can get away with just having their email address. Then do not ask for their phone number, do not ask for their address, do not ask for their birthdate, and so on. Basically, Any personal information, any personal data that could be used to identify the person behind the data.
[00:05:44] Mariam Tsaturyan: This is more or less how personal data is defined. If you don't have absolute need for that, for your business purposes, do not collect it. Limit yourself to collect as little data as possible. [00:06:00] A good practice is to just collect the email address and first name if you need it. Now the next layer of protection for your website compliance is your disclaimer policy.
[00:06:11] Mariam Tsaturyan: That also includes a lot of the necessary disclosures in it. Your disclaimer policy is what's going to act as something that limits your liability. and hopefully never you get sued sometimes in the future, right? Your disclaimer policy will have all kinds of disclaimers in it. For example, for me, it will have a legal disclaimer in it, like the one I did before this episode started.
[00:06:39] Mariam Tsaturyan: For some, it might have a medical disclaimer, health disclaimer, financial disclaimer. Might have some kind of earnings disclaimer. It might have some. Guarantee or anti guarantee, disclaimer, whatever kind of disclaimer is necessary for you to protect yourself as a business owner, as a [00:07:00] professional, you want to have in your disclaimer and disclosure policy.
[00:07:44] Mariam Tsaturyan: This is where you will talk about your intellectual property rights. This is where you will warn them away from all kinds of infringement, copyright, trademark on patent, right? So a trademark I'm sorry, terms and conditions. Agreement or the [00:08:00] policy is extremely, extremely important, even though it is not a legally required policy to have on your website.
[00:08:36] Mariam Tsaturyan: Now, this was website compliance. In a nutshell, have these policies in place to make sure that whatever you build onto your website can further be protected legally. because if this first layer is not protected, it defeats the purpose. Now, once you have this in place and it's time for [00:09:00] you to start creating your digital product, or maybe you have already created digital products, the next thing you want to think about is copyright issues.
[00:09:10] Mariam Tsaturyan: One, when you have a digital product, you want to have a copyright disclaimer and disclosure in place. This means that little copyright notice that you see before you read a book, whether it's an e-book or an actual book, any kind of PDF guides or if one. Start, I'm sure you have seen this copyright notice that says, this content, this movie, or this ebook, or this story, whatever it is, is protected under the US copyright laws that the creator holds the copyright to this work, and any illegal use distribution, copying modification, Constitutes as copyright infringement, and you will take legal action.
[00:09:53] Mariam Tsaturyan: So this copyright notice is essential. You want to have this copyright notice before you actually [00:10:00] start providing any kind of content that you know is meaty. That includes details that comes from your. Knowledge or is an original and unique work for your purposes. So anytime you wanna start something like that, make sure your copyright notice is in place before you start.
[00:10:18] Mariam Tsaturyan: Now, does that does having this copyright notice in place mean that people will not copy your work, infringe your copyright? Absolutely not. I'll be the first person to tell you that. Having this in place does not mean that people will not copy you. If somebody is determined to copy your content, they will do that.
[00:10:38] Mariam Tsaturyan: No matter what you do, you could put one of those plugins on your website that prevents them from being able to copy paste material, and they will still copy your material. So if somebody's determined, nothing's going to stop. But having this in place will help you. If someone does infringe, you [00:11:00] can say that they knowingly infringed your copyright because you have this notice up.
[00:11:07] Mariam Tsaturyan: They. There's no way that they didn't see this notice because it comes before any information. Therefore, they knowingly and intentionally infringed your copyright. So this matters. Make sure to have that notice in place. Now when it comes to copyright issues, of course we are not done for your digital product.
[00:11:31] Mariam Tsaturyan: Aside from that main copyright notice that comes before any work. You also wanna have some kind of a copyright notice in the footer that usually states the year. It states the name of your business, and then you can have some sentence that says, for example, all rights reserved, and you're welcome to have more information on there if you want.
[00:11:51] Mariam Tsaturyan: Again, this is merely precautionary. It serves as a notice to other people so nobody can claim that they didn't know this [00:12:00] work was copyrighted, even though, as we've already discussed this topic in previous episodes. Copyright protection is automatic. However, people will try to argue anything this days, so have this notice in place.
[00:12:14] Mariam Tsaturyan: Now with copyright, of course, we have to deal with issues like copyright infringement and fair use. Fair use is a doctrine, a defense to copyright infringement. This means that for limited purposes, People or specific people can use your content without asking for. Now, fair use doctrine as it's known, is an extremely notoriously gray area in copyright law.
[00:12:47] Mariam Tsaturyan: Because this is dis decided on a case case by case basis. There is no one size fits all approach when it comes to the fair use doctrine. There are some factors that you need to [00:13:00] determine kind of way against each other to see if something constitutes fair use or not. . But what I would recommend, this is going a little step further than most digital creators would.
[00:13:12] Mariam Tsaturyan: In fact, this is not something that I have personally done in, in the past either, but this is definitely something that I am implementing moving forward because I think it makes a difference. It is. So you can have a separate page on your website or in your course area where you tell them what would constitute fair use, how other people may or may not use your content.
[00:13:41] Mariam Tsaturyan: So for example, If someone hypothetically wants to review your course, write a review of your course for other people to determine to help them decide whether they wanna be part of your course or not, that could constitute as fair use. Because they're writing a review on it, [00:14:00] so they need to be able to talk about the course.
[00:14:03] Mariam Tsaturyan: Maybe they need to use some aspects of the course. Obviously not entire portions, so this is where you can be creative. This is where you can lay down the law, so to say, and tell them what is permitted and what is not permitted, just so you get in front of this thing that might happen and you control the situation.
[00:14:24] Mariam Tsaturyan: You dictate how this process should be done so that nobody can come back and say, Hey, this is fair use. You can say, look, I have a fair use section that specifically lays down what can and cannot be done. You've agreed to this before you actually access the course. So what you've done is. Maybe not fair use.
[00:14:47] Mariam Tsaturyan: But here's the thing though, I do have to give you this little disclaimer, or warning fair use is something that is decided by the court. It is not the final fair use, right? Because [00:15:00] I can say what that person did is not fair use, and they can argue that it is fair use. And at the end of the day, we're disagreeing on that.
[00:15:07] Mariam Tsaturyan: So who's going to decide what cons, what constitutes fair use? The courts, right? So just keep that in mind, just because you say something is not fair use and the other person says it is, if push comes to shove, it will have to be decided by the courts if you really wanna have a final determination on this topic.
[00:15:26] Mariam Tsaturyan: However, it's a good idea to have some kind of. Page in place where you talk about what they're allowed to do and what they're not allowed to do. Similar to a lot of medias and brands out there where they have like a media page where they might let you use their logo or you some images from their website for specific limited purposes.
[00:15:47] Mariam Tsaturyan: You might wanna have something like that in. . The next thing that we need to take into consideration with copyrights is copyright registration When it comes to your digital product your digital product, [00:16:00] more likely than not can be registered as a group work as opposed to registering each individual lesson on its own.
[00:16:08] Mariam Tsaturyan: If you haven't published it, . And again, a publishing publication when it comes to copyright is a term of law. So it doesn't mean necessarily the same thing as publishing in a regular sense of the word, like you click publish. That doesn't necessarily mean that your copyright attorney will be able to Do an analysis and determine whether your work has been published or not.
[00:16:30] Mariam Tsaturyan: But with digital products, if let's say it's an online course, you might be able to protect it as a group work as opposed to each individual lesson or module on its own. And obviously as a group work, it'll cost you a lot less money, but consider protecting it with copyrights, especially if what you're creating is meant to be a signature product.
[00:16:53] Mariam Tsaturyan: If it's just something that. Sell like for a few, I don't know, days or months, and then retire it [00:17:00] before your heart's really not in it. Then, maybe do not register your copyright for that, but if what you've created is meant to be, Signature product is part of your brand, then do you consider registering your copyright for that in case infringement occurs so you have more options for protecting it?
[00:17:20] Mariam Tsaturyan: The next thing that I want you to consider when it comes to digital product as a digital product creator or seller is the issue of trademarks. Trademark is your brand identifier. again, what you've created is part of your brand, or it's a signature product and you want that signature product to be part of your brand.
[00:17:46] Mariam Tsaturyan: Then register a trademark for that product's name. If it's registerable. Of course registering your trademark for that will mean that nobody else out there can create a digital product [00:18:00] within the same field or niche with a name that is the same or confusingly similar to yours. So this prevents infringement and if infringement does happen, you have a lot of avenues available to you to fight it.
[00:18:16] Mariam Tsaturyan: The next topic I want you to be cognizant on and sensitive to right are refunds. . Now, refund is a big issue in the online business world especially. So in the digital products world. With refunds, there is no law. First of all, let's get that out of the way. There is no law that says you have to have a refund.
[00:18:40] Mariam Tsaturyan: Or you don't have to have a refund. It's one of those things that is optional, and it comes down to what kind of a business owner are you? What kind of a business person are you? So with refunds, the most important thing is to have a clear conspicuously [00:19:00] written policy or a clause as to whether you actually offer refunds or not.
[00:19:08] Mariam Tsaturyan: once you have that in place, whether you offer refunds or not, the next thing you want to cover is if you are offering refunds. How are your refunds offered? What are the basis for asking for refunds? Now, there are several types. Some people have no questions asked. Refunds, you just ask them for a refund and they give it.
[00:19:33] Mariam Tsaturyan: Some people have no questions asked and a time limitation refund. This is more common. So maybe you have a refund in place that says no questions asked. Refund. Within 30 days of your product purchase or within 14 days of your product purchase, whatever timeline you want to put, put in place.
[00:19:54] Mariam Tsaturyan: But if you have a time limitation this is how it's going to work. Now there are other [00:20:00] kinds of refunds, a available there is one that is not no questions asked. There is one that says, for example do the work. , if you can show us proof that you've done all the work for this course, and it still didn't work for you, meaning you followed every single direction that this course has in place.
[00:20:22] Mariam Tsaturyan: You've done everything this course tells you to do, and you didn't see results or even little bit of improvement. , then you can get a refund. But you have to present proof of that work that you've done. So this is a conditional refund. There are hybrid options where you have this condition and a time limitation.
[00:20:41] Mariam Tsaturyan: I do the work and show us that you've done the work within the first 30 days or 60 days, and you can get a refund if nothing worked right? So just decide for yourself what is the refund policy that you wanna move forward with. and [00:21:00] clearly and unambiguously. Write that in, make sure it's right there for your buyers to see.
[00:21:07] Mariam Tsaturyan: It's not hidden anywhere. So they know what they're getting themselves into and they cannot come back to you and say, oh, they didn't know that there was no refund. Or they buy the course. Let's say you don't have a refund policy in place, or I'm sorry, you have a. Policy that says no refunds will be given for, because this is a digital product and somebody comes and asks for a refund and says I didn't know that there were no refunds, so you don't wanna deal with this.
[00:22:02] Mariam Tsaturyan: You can have your refund policy also be included as a clause inside your terms and conditions agreement. You can have your refund policy as a frequently asked question or, included in your frequently asked questions area. And you can definitely have your refund policy linked on your purchase page for your product.
[00:22:24] Mariam Tsaturyan: So make sure this is visible. That's the goal. We want to give others notice. We want to let them know beforehand that this is what you're getting yourself into. This is how you protect yourself as a digital creator or digital product seller. You want to limit liability to yourself. As much as possible from the very beginning.
[00:22:46] Mariam Tsaturyan: You want to address all those little pesky issues that might come up along the way if people are confused about your product or conditions. So make sure there is no room for confusion. Be as [00:23:00] clear as you can. Now the next section after refunds that I wanna briefly touch on before we conclude today's episode is accessibility.
[00:23:11] Mariam Tsaturyan: Accessibility is essential in order to give equal access to all. . We've talked about accessibility before in several other previous episodes, and this is a topic that we'll probably keep talking about as we go just because it wraps itself around everything that you do as a business owner, as an online business owner.
[00:23:35] Mariam Tsaturyan: When you have a website, when you have digital product, your goal as a business owner should be to give equal access to all. Now, equal access does not mean that you give the same kind of access, because sometimes it's impossible. If somebody has certain limitations, whether physical or mental, or they have [00:24:00] impairments like visually impaired, hearing impaired, whatever condition may.
[00:24:05] Mariam Tsaturyan: They might not. Have access in the same way as the other person. For example, a person who's not visually impaired will just read the material clearly and understand it and see it. A person with visual impairment cannot read it in the same way. They need to use helpers, they need to use screen scanners and whatnot.
[00:24:27] Mariam Tsaturyan: So if that's the case, you need to make sure that your material is scannable. This means number one. Using clear legible fonts, using big fonts, not writing your text in tiny, tiny letters. Three, using the proper tags for your content, your heading tags, H one s, h two s, h three s, your paragraph tags if you have any kind of graphics or images in place, make sure you [00:25:00] have your alt tags or alternate tags explaining what that graphic.
[00:25:04] Mariam Tsaturyan: Presents. If you have like new paragraphs, make sure you use a paragraph break feature as opposed to just pressing enter, enter to create that space between the paragraphs. And if you have a digital product, consider really, really consider adding transcripts so that if somebody is. If somebody is hearing impaired, they can read the transcript.
[00:25:29] Mariam Tsaturyan: And also if somebody is visually impaired, the audio is there. So make sure you give everyone access to what you're creating. And the same is true if you create. Downloadable products like PDFs, there is a way to make your PDFs accessible. So accessibility is part of the law when we have the ada Americans with Disabilities Act, and then within that we have several sub regulations, [00:26:00] think of them like sister regulations to ADA that actually do dictate that you need to have to, you need to be accessible and compliant with this law.
[00:26:08] Mariam Tsaturyan: And there are some strict fines that you could be subject to. However, even if this wasn't absolutely legally required, this is just good practice as a business owner. You need to make sure that your products are equally available to everyone to purchase and look through if they need to. Because even if we take humanity and decency out of the question, as a business owner, you want to make sales.
[00:26:37] Mariam Tsaturyan: And by not making your content accessible, you are limiting yourself because the. Who might have purchased, if they could have had access to your information, if they could have read it or if they could have heard it. They can. Because you didn't make it accessible and you've lost out on buyers. So make sure accessibility is part of your digital [00:27:00] product creation and sales process.
[00:27:02] Mariam Tsaturyan: Okay, so we've talked about several things. Your website compliance when it comes to your policies, and. Agreements in place. We've talked about your copyright issues, your trademark issues, your refund issues, and your accessibility issues. So these are all things that you need to take into consideration when you are creating digital products or when you're selling dig.
[00:27:27] Mariam Tsaturyan: Creating and already selling digital products. If you already have some products in place, go through them today. Make sure that you have your policies linked out. Make sure that you have a clear refund policy in place, that you have your copyright notices in place, and that everything is access. . I, I do have a free checklist on this topic that includes a little bit more detail from what we've talked about today.
[00:27:55] Mariam Tsaturyan: I will link that checklist in the show notes for you to be able to [00:28:00] download, and it talks about what we've talked about today as a checklist, and it does have a couple of more added on details in there as well. If you loved today's episode, Go ahead and leave me a review for my podcast on Apple Podcasts, and if you have questions, get in touch with me.
[00:28:20] Mariam Tsaturyan: I love getting comments and questions from you because if you have a particular question, I might be able to create content around your question on its own. So just get in touch with me. Let me know what you think about the episode so far, whether you're loving this format or not. So make sure to tune back in. Pleasure talking to you as always, talk to you soon.