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Global Media and Communications Watch

The International Media and Telecoms Law Blog

Posted in Data Protection & Privacy, Internet, Policy & Regulation, Telecoms & Broadband

Outsourcing, technology procurement and cloud in Asia – the legal and regulatory essentials

New operating models – new challenges

As businesses in Asia grow in scale and complexity, they are increasingly turning to outsourcing and large scale technology procurement, including the deployment of cloud technologies, to support their operations and gain competitive advantage.

These initiatives reflect both a maturing of operational strategies for businesses in the region and increasing cost sensitivity.

At the same time, electronic data is becoming an increasingly valuable business asset in Asia, as it is elsewhere. “Big Data” does not just mean larger quantities of data – it means higher quality, more useful data derived from increasingly sophisticated analytical tools. With the right investment in technology, it means competitive advantage.

A third pressure point is the marked increase in regulation in Asia, including increasingly detailed material outsourcing and procurement regulations in regulated sectors, and the rapid expansion in recent years of comprehensive “European style” data privacy regulation. While much remains possible from a regulatory standpoint, stepped-up regulation is forcing Asia’s regional businesses to evaluate their procurement options more carefully, engage in more rigorous tendering and due diligence processes, manage an increased likelihood of regulatory change and enter into more detailed contractual arrangements in order to achieve compliance.

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Posted in Data Protection & Privacy, Telecoms & Broadband

U.S. Industry Recommends Market Solutions for Privacy, Cybersecurity, and Law Enforcement Access Challenges for the Internet of Things

The Internet of Things raises new concerns about privacy, security and law enforcement access.  Rather than develop new rules for new devices, industry experts convened during the 2014 Winnik International Telecoms & Internet Forum recommended allowing the market to try solve these challenges before the government steps in.

In May 2014, the President’s Council of Advisors on Science and Technology (“PCAST”) released a report on big data as an accompaniment to the big data review being conducted by the White House.  As moderator Mark Brennan of Hogan Lovells noted, the report offers a practical framing of privacy issues in light of current technologies and provides insight into the future trajectory of privacy and big data issues.  Jules Polonetsky, Executive Director and Co-Chair at the Future of Privacy Forum, called the report “remarkably sane,” stating that it considered in earnest both the potential benefits and the potential harms of big data.  Michael Brown, Vice President of Security Product Management and Research at Blackberry, indicated that one of the key takeaways from the report is that rigid application of the Fair Information Practice Principles (“FIPPs,” the legacy guidelines that underscore certain data collection and use policy frameworks) could stifle many of the benefits that big data has to offer.  Continue Reading

Posted in Copyright, Entertainment & Content, Internet, Policy & Regulation

Russia: New anti-piracy fee for Internet content is proposed

The First Vice Prime Minister Igor Shuvalov has reportedly[1] ordered the Russian Ministries of Culture, Communications, Economic Development, Finance, and Justice to assess a proposal from the Russian Union of Right Holders (“RUR“), to fight piracy by introducing a fixed royalty fee to be paid to rights holders in exchange for unlimited use of content on Internet. The Ministries would be required to develop relevant legislative amendments by 5 December 2014.

Under Russian law copyright and related rights clearance may be exercised by way of conclusion of agreements with right holders directly or with collecting societies representing such right holders.  Collecting societies are supposed to manage, on a collective basis, the rights of  authors, performers, producers and other right holders, when;

  •  it may be difficult for the right holders to exercise their rights individually
  • or  when Russian law allows use of copyright and related rights without a right holder’s consent provided that such right holder receives a due royalty.

Currently collecting societies in Russia may obtain state accreditation for managing certain rights of right holders, for example, exclusive rights to published musical works with respect to their public performance, broadcast or cable transmission.

The RUR suggests the introduction of a so-called “universal license”, which should serve as a new tool for IP rights management on the Internet. For this purpose RUR proposed a set of amendments to the Russian Civil Code.

According to the RUR’s proposal, communication operators shall be required to obtain a universal license and pay the anti-piracy fee for almost all types of content (books, movies, music, etc.), except for software and compiled works such as e.g. databases.  Though the royalty amount is not established yet, according to information available from public sources[2] such a royalty may be in the range from $1 to $3 per subscriber annually, which may amount to $200M – 600M per year.  The function of collecting payments from the communication operators is expected to be imposed on a collecting society accredited by the state.

The RUR itself already manages the rights of the authors, performers and producers of phonograms (recordings) and audio-visual works in order to receive a fee for the reproduction/playback of phonograms and audio-visual works for private use.  Such fees have been collected by RUR since 2010 for instance from manufacturers and importers of devices and carriers (tangible mediums) which are used to reproduce the phonograms and audio-visual works in the amount of 1% from the resale or customs price.  In 2013 the RUR collected approx. RUB 390M.

The RUR’s proposal has been thoroughly discussed by the market players and practitioners.  With all respect to positive aspects of RUR’s proposal (such as e.g. release of users from liability for piracy, potential reduction of courts` and state authorities’ related workload), negative aspects were also discussed, mostly by communication operators and right holders.  Communications operators appear to be not supportive of such amendments: they consider them as an attempt to shift the piracy problem from right holders to communication operators which may result in increased Internet subscription fees for ordinary users.  Right holders have complained about the absence of an effective system for distribution of royalties collected by the collecting societies among right holders  as well as about potential legalization of piracy.  There is also a concern the niche may be monopolized by just one collecting society.

The current version of the amendments stipulates the potential effective date as 1 January 2015.  We will keep monitoring this legislative initiative and provide further update in due course.

Posted in Advertising, Broadcasting, Policy & Regulation

Poland: The self-regulation of major broadcasters and bill concerning the ban on junk food advertising

On 29 October 2014, a group of major Polish broadcasters, including TVN, Polsat, TVP (the Polish national broadcaster), ITI Neovision, and Walt Disney Company Limited entered into a self-regulation agreement on the advertising of foods and drinks to children below the age of 12. The agreement was drafted and executed in cooperation with representatives of the National Broadcasting Council (the Polish media regulator), and the Advertising Council (a reputable NGO dealing with ethics in advertising).

The broadcasters undertook that from 1 January 2015 no programmes directed at children under the age of 12 can be accompanied by commercials, including information on sponsorship, of certain, “unhealthy” foods and drinks. The undertaking concerns products containing ingredients that are not recommended for consumption in excessive amounts (such as saturated fats, sodium, and sugars, etc.). The list of ingredients and their recommended amounts is included in an appendix to the understanding. The appendix was drafted in collaboration with the National Food and Nutrition Institute (the leading research and development organization committed to, among other things, the prevention of food related diseases).

It should be noted that, according to the appendix, a number of products should not be advertised to minors under the age of 12, irrespective of the amounts of listed ingredients contained therein. This specifically concerns chocolate, jams, marmalades, sweets, sweet drinks (sodas), as well as crisps, potato-based snacks, and dough-based products.

The above appears to be part of a more general move aimed at limiting children’s access to products considered to be unhealthy and leading to the obesity of minors, as well as other related diseases. The lower house of the Polish parliament has recently passed a bill on the ban on selling and advertising such products in schools. The bill is yet to be accepted by the Senate, but it seems rather likely that it will enter into force in mid-2015. The existing draft covers no details as to what exactly is to be banned; this is to be specified in a separate implementing act. However, it seems very likely that, according to the government declarations, this will directly relate to those products such as chocolate, sweets, sweet drinks (sodas), and crisps, etc.

Posted in Copyright, Entertainment & Content, Internet, Policy & Regulation

UK High Court orders first website blocking injunction to combat trade mark infringement

On 17 October 2014, in the case of Cartier International AG and Others v BskyB and Others, Arnold J ordered the five major UK ISPs to block a number of websites that were advertising and selling counterfeit goods and on 17 November 2014 he handed down his judgment on the form of the Order. The case is interesting because, according to Arnold J, with one possible exception, it is the first occasion on which an application for a website-blocking order has been made in Europe in order to combat trade mark infringement. He calls it a test-case which is likely to be followed by other applications both in the UK and in other countries. In his judgment on the form of the Order Arnold J confirmed that he considers that the UK High Court has jurisdiction to order an ISP to block access to websites using the ISPs services to infringe any intellectual property right (not only copyright and trade marks) and any unlawful activity, such as child pornography.

Copyright holders have recently had considerable success in relying on section 97A of the Copyright, Designs and Patents Act 1988 (“CDPA”) to obtain website-blocking injunctions against the major UK ISPs in order to block access in the UK to websites making available infringing content for streaming and downloading. Section 97A transposed Article 8(3) of the Information Society Directive (Directive 2001/29/EC), which provides that Member States shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright.

Article 11 of the Enforcement Directive (Directive 2004/48/EC) went further than the Information Society Directive and provided that Member States must ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right (not only copyright). The UK Government did not however pass any legislation to implement Article 11 of the Enforcement Directive. The ISPs argued that this meant the UK High Court did not have jurisdiction to make an order of the kind requested by the claimants. The claimants on the other hand contended that the High Court has jurisdiction under section 37 (1) of the Senior Courts Act 1981, which provides that the High Court ‘may order an injunction…in all cases in which it appears just and convenient to do so’. Arnold J took guidance from the CJEU ruling in L’Oréal v eBay and found that section 37 (1) should be interpreted as empowering the Court to grant an injunction against an intermediary. He found the wording of section 37 (1) to be extremely broad.

Similar threshold conditions were held to apply to trade mark cases as to section 97A copyright cases:

  • ISPs must be established as intermediaries;
  • users and/or operators must be infringing the claimant’s trade marks using the intermediaries’ services; and
  • the intermediaries must have the requisite knowledge of that infringement.

All these conditions were met by the claimants in this case. The claimants also had to show that the relief was necessary, effective, dissuasive, not costly or complicated, struck a “fair balance” between fundamental rights and was proportionate. Arnold J found that the relief met all these conditions.

On the issue of effectiveness he found that it was only necessary to show that the measures would dissuade users of that service from accessing the target website.  It did not matter that the content would remain available on another website. Notice and take down procedures were not considered a realistic alternative as, based on the experience in the copyright context, Arnold J found that many offenders would operate the website outside the jurisdiction to make enforcement difficult.  A request that the host take down the website would simply result in the operators moving to a different host. Arnold J was persuaded of the effectiveness of blocking orders by the data on recent section 97A injunctions that showed a marked and sustained drop in traffic to targeted websites after a blocking order was implemented.

The ruling is of considerable importance for rights holders, adding an important and effective weapon in the UK, and potentially EU, to their armoury in the battle against counterfeiters. ISPs will be concerned however that there will now be a flood of applications for website blocking orders which will bring increased costs and an administrative burden on the ISPs.

Posted in Telecoms & Broadband

Winnik Forum – U.S. FTC Commissioner Maureen Ohlhausen Keynote Address

As the keynote speaker for the Winnik Forum, U.S. Federal Trade Commission (FTC) Commissioner Maureen Ohlhausen sat down with Chris Wolf, Director of Hogan Lovells’ Privacy and Information Management Practice to discuss the evolving role of the FTC as we enter an era of “Big Data” and the “Internet of Things.”  Commissioner Ohlhausen offered her views on a flexible approach to protecting consumer data privacy as connected devices continue to evolve.  As opportunities arise for additional potential uses of collected data, Commissioner Ohlhausen said organizations and policymakers should consider a “harms-based approach” in which new uses of data would be allowed as long as they do not cause consumer harm and as long as they remain consistent with earlier promises that organizations have made to consumers.  The key for Commissioner Ohlhausen is that companies should disclose what data is being collected and keep the promises that they make to consumers about the collection and uses of that data. Continue Reading

Posted in Telecoms & Broadband

Winnik Forum: U.S. Federal Communications Commission’s Chief Engineer Explains that Flexible Use Spectrum Policy Will Readily Accommodate the Internet of Things

During the 2014 Winnik Forum, Julius Knapp, Chief of the U.S. Federal Communications Commission’s (“FCC”) Office of Engineering and Technology, rejected proposals to dedicate spectrum bands exclusively to Internet of Things applications.  According to Knapp, the FCC’s current “flexible use” rules for licensed and unlicensed spectrum can accommodate varied and yet-to-be-imagined applications, “negat[ing] the need for a dedicated Internet of Things allocation.”  According to Knapp, the FCC does not “expect right now that there’s going to be an [Internet of Things] band.” Continue Reading

Posted in Data Protection & Privacy, Internet, Licensing, Policy & Regulation, Spectrum, Telecoms & Broadband

Technology neutrality in Internet, telecoms and data protection regulation

Technology neutrality is one of the key principles of the European regulatory framework for electronic communications. The principle was first introduced in 2002, and reinforced in the 2009 with the revised EU telecoms legislation. Since the 2009 revisions, all spectrum licenses in Europe are supposed to be “technology neutral.” Since 2011, technology neutrality has also been recognized as a key principle for Internet policy (OECD, 2011). The concept now appears in the proposed EU Data Protection Regulation,[1] and the proposed EU Directive on Network and Information Security[2] (the so-called NIS Directive), both of which will likely be adopted in 2015. Technology neutrality sounds like a good idea, but its meaning is not immediately clear. The purpose of this paper is to unpack the concept of technology neutrality, and examine its meaning (and utility) in different contexts.

Depending on the context, technology neutrality can have three different meanings:

  • Meaning 1: technology neutrality means that technical standards designed to limit negative externalities (eg. radio interference, pollution, safety) should describe the result to be achieved, but should leave companies free to adopt whatever technology is most appropriate to achieve the result.
  • Meaning 2: technology neutrality means that the same regulatory principles should apply regardless of the technology used. Regulations should not be drafted in technological silos.
  • Meaning 3: technology neutrality means that regulators should refrain from using regulations as a means to push the market toward a particular structure that the regulators consider optimal. In a highly dynamic market, regulators should not try to pick technological winners.

In practice, Meaning 1 and Meaning 3 can overlap. A regulator may impose a given technological solution both as a means to limit harmful externalities, such as radio interferences (Meaning 1), and as a means of structuring the market in a certain way (Meaning 3). We examine each of these meanings in more detail.

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Posted in Telecoms & Broadband

Winnik Forum: Drafting Legislation for the Internet of Things

One of the challenges facing regulators around the world as they craft rules to govern the Internet of Things is that traditional industry silos that were the basis for past legislation may no longer apply.  As part of the 2014 Winnik Forum, Hogan Lovells’ partners Michele Farquhar and Trey Hanbury joined two senior staff members from the U.S. House of Representatives Committee on Energy and Commerce (“Committee”)—David Redl, Counsel on the majority staff, and Shawn Chang, Senior Democratic Counsel—to discuss what a legislative solution to the issues raised by the Internet of Things might look like in the United States.

As Redl noted, in late 2013, Republican leaders in the House launched a comprehensive review of the Communications Act of 1934 (the “Act”), with the goal of updating the primary telecommunications law in the U.S. to better comport with the complicated contemporary telecom marketplace.  (We discussed current efforts to reform the U.S. Communications Act in more detail in our recent article on Rewriting the U.S. Communications Act in the 21st Century.)  The Act was last amended in 1996, well before the Internet of Things became a reality.  In a series of white papers released during 2014, the Committee has sought comment on how to reshape the Act to address new challenges raised by enhanced connectivity.  Chang added that the Democrats supported taking a comprehensive look at the Act and agreed that one of the challenges of drafting legislation to address the Internet of Things is that it implicates so many previously disparate industry sectors.

As an example of the difficulties facing legislators charged with drafting laws to govern a connected future, Redl explained that in his experience, lawmakers generally take one of two incompatible positions.  Either they believe that “bits are bits,” and all broadband-delivered data should be regulated in the same way, or they remain advocates of sector-specific legislation and argue that data derived from an energy application, for example, should be treated like other energy data.  The Internet of Things invokes so many different use cases that were never contemplated in the telephony world, Redl explained, that people are reading the Act and asking “how should we deal with this?”

Hanbury asked the panelists if the challenges posed by the Internet of Things were better handled through a legislative fix, or whether the Federal Communications Commission, as the primary U.S. telecommunications regulator, should take the lead.  Redl replied that this was one of the questions that the Committee had teed up as part of its Communications Act reform efforts.  The Committee is not done with its inquiry, Redl added, and observers should expect to see more white papers seeking comment on issues implicating the Internet of Things, including at least one white paper on video issues.

Farquhar noted that although the House had been working well together on telecommunications issues, the current U.S. Congress has been criticized for partisan in-fighting and lack of productivity.  Chang said that communications is a field that generally does not lend itself to partisan politics.   He expressed optimism that reforms to the Act impacting the Internet of Things could move forward regardless of the composition of the next Congress.  Redl added that for all parties and every sector of the communications economy, spectrum “is going to be key,” to satisfy the needs of “a growing, data-hungry population.”

The U.S. Congress is not the only body that will be faced with legislative challenges raised by the Internet of Things.  According to some estimates, there will be 50 billion connected devices worldwide by 2020.  Countries around the world will be watching to see how the U.S. decides to act, and in particular whether the regulation of the Internet of Things might indirectly lead to increased regulatory power over the Internet itself.

 

Panel Moderators

Michele Farquhar, Hogan Lovells, Washington DC

Trey Hanbury, Hogan Lovells, Washington DC

Panelists

Shawn Chang, Senior Democratic Counsel, U.S. House of Representatives Committee on Energy and Commerce

David Redl, Counsel, U.S. House of Representatives Committee on Energy and Commerce

Posted in Advertising, Broadcasting, Copyright, Data Protection & Privacy, Defamation, e-commerce, Entertainment & Content, Internet, Licensing, Policy & Regulation, Spectrum, Telecoms & Broadband

Launching: LimeGreen IP News

Hogan Lovells’ Intellectual Property, Media and Technology team is excited to announce the launch of LimeGreen IP News.

Complementing our LimeGreen IP know-how site, this new online news platform is designed not only to provide you with detailed discussion on recent case law and decisions but also to provide the latest business critical IP trends and issues from around the globe.

To sign up to free alerts from LimeGreen IP News click here to be taken to our subscription page, where you can select to receive all content, or specify your areas of interest (eg patents, trademarks, copyright etc.).

As a reminder, our LimeGreen IP know-how site, provides the answers to frequently asked questions on patents, trademarks and copyright law around the world.  The addition of our news site, enables us to provide a fuller picture of the changing IP landscape.

We hope you enjoy LimeGreen IP News and find it to be a valuable resource.

Happy reading!