On 29 November 2017, the European Court of Justice (CJEU) handed down a decision on a video recording service that stores TV programmes online in a cloud (C-265/16 – VCAST). According to the Court, the cloud recording service has a dual function that enables its users to create reproductions on the one hand but also makes copyright protected works publicly available on the other. The means by which the TV program is communicated to the public differs from the means of the original transmission. Therefore, the transmission constitutes a communication to the public and the business model of a cloud recording service without the right holders consent is unlawful.
Linear TV that can only be watched at a specific time of the day is increasingly substituted by new business models that allow consumers to watch any programs whenever the consumers would like to. One of those business models is currently involved in a litigation in Italy: the cloud recording service of the British operator VCAST Limited. The cloud recorder enables its users to watch terrestrial “free to air” TV programmes by Italian broadcasters – and to store the content in a cloud instead of the private servers of the customers. VCAST did not obtain the right holders consent. By means of the cloud recorder, the Italian TV could also be watched outside of Italy.
The Italian Broadcaster RTI SpA claimed copyright infringement and sued VCAST. However, VCAST relied on the Italian private copying exception based on EU law. The Tribunale di Torino had doubts about the application of this provision on the cloud recording service and therefore submitted two questions that basically deal with the issue whether the cloud recording service is lawful in the light of Art. 5(2) lit. b of the InfoSoc Directive 2001/29.
The popularity of wearable technology has seen a number of collaborations between technology companies and designer brands looking to launch the next big thing in the ‘Fashion Tech’ space. This summer Levi’s Commuter Trucker jacket came on the market, which has Google Advanced Technology woven into the jacket, allowing the wearer to wirelessly access their phone to use apps, end a call or listen to music simply by touching their sleeve. This article looks at some of the issues and opportunities from the perspective of a new technology company (the “TechCo”).
Fashion Tech collaborations are clearly advantageous for new technology companies seeking to commercialise their first wearable product. Such technology companies can benefit enormously by being linked to a big name brand with an established reputation and loyal following. The designer and luxury brands also benefit from avoiding the time and cost of the several years of research & development required to bring a new wearable to market.
Initial discussions with a potential business partner may require that TechCo discloses important details regarding its product. The TechCo will want to demonstrate its product has a unique selling point that distinguishes it from its competitors. This will require going into some detail about its technology. The fashion brand may already have some design ideas in mind and will want to understand if TechCo’s technology is compatible with its vision.
Two weeks ago, certain territorial divisions of the Russian Data Protection Authority, Roskomnadzor, published their 2018 plans for conducting inspections of local companies’ compliance with Russian data privacy requirements, including with Russia’s data localization requirement. The inspection plans contain a number of prominent multi-national and Russian companies.
Within such inspections, Roskomnadzor assesses the compliance of the entity with Russian regulations on personal data (consents, policies, decrees, cross-border data transfers, data localization requirement, technical measures, etc.).
Companies operating in Russia can check the inspection plans in their respective regions (Central, North-West, Uralian, Siberian) to determine whether they or their affiliates are subject to audits in the upcoming year and get properly prepared. Plans for South, North Caucasian, Privolzhsky, and Far Eastern regions should be available soon as well.
Welcome to the Hogan Lovells Global Payments Newsletter. In this monthly publication we provide an overview of the most recent payments, regulatory and market developments from major jurisdictions around the world as well as sharing interesting reports and surveys on issues affecting the market.
Key developments of interest over the last month include:
Cheque image clearing system launched in the UK: On 30 October 2017, the Cheque & Credit Clearing Company launched the Image Clearing System which enables quicker clearing of cheques by exchanging images of cheques between banks and building societies.
Belgium announces it will miss the PDS2 deadline: The Ministry of Finance has announced that it is unlikely to meet the 13 January 2018 deadline for PSD2 and expects transposition to occur by March 2018.
UK Payment Systems Regulator publishes report and consultation on authorised push payment scams: The report, published on 7 November 2017, explains the actions taken since the Which? super complaint in September 2016 and sets out a new proposal for a “contingent reimbursement model” to protect customers.
To view a PDF of the full Newsletter please click here. You can also follow us on Twitter at @HLPayments for regular news and updates.
Ted Mlynar and Ira Schaefer in our Blockchain-Smart Contracts IPMT Working Group were interviewed for the Fordham Intellectual Property, Media & Entertainment Law Journal podcast series.
Ted and Ira talk about their work with Ethereum smart contracts, and how blockchain technology can be used to protect intellectual property rights. They also discuss the important new roles for lawyers in implementing the technology and resolving the legal issues surrounding it.
Catch the podcast here
For more international information, please visit our Blockchain: Linked Ledgers topic center.
What has happened?
The European Union will end unjustified geoblocking for consumers wishing to buy products or services online within the EU before the end of next year.
What does this mean?
The European Parliament, the Council and the Commission have reached an agreement whereby consumers will be able to buy goods and services online from any EU country.
The EU expects that the new rules will boost e-commerce for the benefit of consumers and businesses.
In effect, people in the EU will now be able to buy products online, rent a car or get their concert tickets across borders on the same terms as are available to people in other EU member states.
They will no longer be asked to pay with a debit or credit card issued in another country.
Three members of Hogan Lovells transfer pricing team recently joined a host of tech companies and other advisors at the TP Minds West Coast conference in San Francisco. In a series of presentations, panels and workshops spread over three days, participants discussed recent developments in transfer pricing, what tax authorities are doing in the area, and how new technology is posing new challenges and opportunities.
But what is transfer pricing? And why does hardly a week go by, without something appearing in the press about it? In the last fortnight or so, for instance, there has been extensive coverage about plans put forward by Senate and House Republicans in the U.S.to tackle what they see as the untoward behaviour of multinationals in using transfer pricing to avoid paying tax. The sums involved are huge too, running into hundreds of millions, or even billions of dollars.
What is transfer pricing?
In basic terms, transfer pricing is the process by which multinational enterprises go about determining what jurisdictions their global profits are booked in. It’s something they have to do in order to draw-up accounts for all their subsidiaries. It involves almost any transactions for goods, services or IP among group entities. And it’s critical when a business is dealing with an acquisition, the integration of two businesses or any other internal restructuring designed to achieve better operating efficiencies.
This week, the European Parliament’s Committee on Legal Affairs’ (JURI) took its long awaited and frequently postponed vote on the draft Regulation COM(2016) 594 relating to online transmissions and retransmissions by broadcasters (press release). With fifteen to eight votes (and one abstention), JURI –the lead EP committee on this proposal – adopted the paper which is likely to become the European Parliament’s position in the trilogue with the Council and Commission. The proposed amendments to the Commission’s first draft can be expected to be approved in plenary shortly.
In the context of the Digital Single Market Strategy, the European Commission aims to simplify the cross-border clearance of rights for broadcasters and thereby enhance the distribution of content within the European Union. Therefore, on 14 September 2016, the Commission presented its draft regulation on online transmissions of broadcasting organisations and retransmissions of television and radio programmes. The draft addresses two main issues: (1) the extension of the “country of origin” principle to broadcasters own online services (so called “ancillary online services“), and (2) the technologically neutral extension of the retransmission right to certain closed networks. For more detailed information about the proposed draft, please have a look at our blog post.
After the rapporteur Tiemo Wölken published a draft report in May 2017 which was recognizably in favour of more far-reaching provisions, there was a lot of push back by the other parliamentary committees as well as by industry representatives. In consideration of the received feedback, rapporteur Wölken worked out a compromise which was leaked not long ago (see our respective blog). Now JURI has taken its final vote on the matter. And, apparently rapporteur Tiemo Wölken is disappointed. From his initial comment we learn:
On Tuesday 14 November the Hogan Lovells DSM Taskforce (our dedicated pan-EU team of lawyers tracking the Commission’s DSM strategy) had its annual live meeting in Brussels to discuss the progress of the implementation of the DSM strategy and key forthcoming developments. The team held a webinar on the status of the strategy and what to expect in 2018 in the areas of platforms, e-commerce, the draft AVMS Directive, the copyright reforms, privacy and telecoms. If you missed it you can read the highlights below or watch the recorded webinar here.
In the area of platforms, Christian Ritz and Falk Schöning highlighted the Commission’s Impact Assessment: “Fairness in platform-to-business relations” (which is running until 22 November). In this, the Commission outlines three policy options to regulate online platforms: (1) a soft law approach to stimulate industry led actions; (2) targeted legislation in parallel with EU competition law, and (3) a detailed regulatory framework to be applied in conjunction with EU competition law. This third option would involve an EU regulator for online platforms. Falk Schöning explained that the Commission currently contemplates whether regulation or antitrust enforcement of platforms is the more efficient way to tackle digital markets. He talked about the term “Hipster antitrust”, which is a US term applied to the call for interventionist regulation for the big internet players. Falk said that the Commission is trying to obtain more data on the power of these large companies in order to understand the impact of the big players on SME’s in Europe. This will feed into the debate on whether a more interventionist approach is needed on online markets. The Study will be published in the next few months.
Does blockchain technology open up new avenues in the field of electromobility? Can decentralized processes that are controlled by a large network be used to convert individual mobility on the road to electrified vehicles and sustainable energy resources? These questions are the starting point of the following blog post of our series on blockchain. In addition to smart contracts, which we discussed in the last blog post, electromobility is another field in which technical innovation and intelligent billing processes can bring significant value via blockchain.
In general, electromobility means the use of electrified vehicles for individual mobility. It relies on a form of power based on the storage of energy in memories (batteries) installed in the vehicle, possibly as hybrid supplementation to an internal combustion engine. Thus, electromobility is a key element of a sustainable and climate-friendly transport system based on renewable energies. Despite the primary advantage – reducing emissions – there are some disadvantages for the consumer. The main issue is “range”, the distance an electrical vehicle can cover with one charge/fill, which is still restricted compared to vehicles with an internal combustion engine. Depending on the model and the driving style, this is sometimes only 100 kilometres. Long battery charging time is another negative aspect. It is therefore necessary to create an infrastructure, away from home and the workplace, which allows continuous recharging of batteries – where the vehicle is in a position to be on the spot for longer periods of time.