Graeme Orchison, partner, DLA Piper
Graeme Orchison, partner, DLA Piper
A view from Graeme Orchison

Think BR: Protecting your digital assets

Brands will not be able to value, protect and exploit their digital assets unless innovative revenue-building models and stronger legal frameworks are established, writes Graeme Orchison, partner at DLA Piper.

Digital assets understandably often focus on traditional media such as books, video and music being made available online.

These assets are easily identifiable; they have an obvious creative and commercial value and, in some cases, have existed in digital form for some time.

However there is wider content to consider.

Most organisations have websites. Most businesses are underpinned by huge internal collections of electronic files, documents and archives. 

Then there are the digital incarnations of brand, reputation and goodwill.

These are all digital assets too and bring with them complex challenges.

One such challenge is in identifying and then valuing such essentially ephemeral assets. 

This can be far from straight forward. It can require flexibility and a degree of trial and error which many businesses, used to valuing more traditional assets, struggle with.

Exploiting that asset base then raises its own challenges.

Data theft and piracy will obviously have a negative impact on profitability - but with increased interactivity and personalisation privacy concerns can be equally as important.

Financial considerations of digitising existing products are also a concern.

There are costs and risks involved and this, combined with the global downturn, leaves many in a difficult situation. 

In order to stay competitive, assets must be digitised but questions over volume, storage, cost, IT performance and the associated legal risks must be asked.

However the creation and exploitation of digital assets is not always a question of pure economics.

For many it is not revenue but reputation that is at stake.

Data privacy can often be overlooked, yet treading without care can bring with it a nasty wakeup call - with increased fines and regulatory sanctions for data breach or misuse bringing added risks.

Organisations must acknowledge that personal information is a digital asset and that such assets are part of their brand's reputation. 

Any misuse can seriously affect customer perceptions and damage the brand. Data privacy should not be an afterthought. 

On the contrary, transparency and reliability in this area should provide competitive advantage. 

Another concern is that the digital world is lagging behind in the multinational, multi-jurisdictional world in which it was created. 

It is not a 'one size fits all' situation and there is a sense of unease that the internet could become fragmented. 

, online laws must develop within an international framework to be effective - yet even within Europe, harmonising directives have sometimes proved difficult to apply consistently in practice, and the challenge of applying new rules on jurisdictions and determining whose law applies in different online scenarios is very real. 

Another challenge is monetising online traffic. A vast number of organisations have put content and services online without charge in the hope of chasing advertising, lured by click-through data that has not always materialised into revenue.

This is not of course to say that such data does not have a value, merely that it may be difficult to work out what that value is and how to realise it within existing legal/commercial frameworks.  

Whatever the true potential for monetising social networks and other online environments, the importance of sustainable revenues cannot be overstated.

Business models may need to be altered radically for certain content and the need to rethink revenue models continues to be stimulated by the final challenge which underlines all others: theft and piracy.

There can be no doubt that piracy and other misuse of digital assets remains a serious issue, however developing user-friendly structures for the distribution of authorised content and services is as important as any anti-infringement action in order to meet that challenge.

Meanwhile, as the promotion and distribution of material moves increasingly online, maintaining and reviewing brand value and integrity has assumed increased importance as organisations realise that their digital assets include everything they publish - and others publish about them - online.

Graeme Orchison, partner, DLA Piper