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Global Media and Communications Watch

The International Legal Blog for the Tech, Media and Telecoms Industry

Posted in intellectual property

September seminar: Improving social mobility in the IP profession

We’re excited to partner with IP Inclusive to host a seminar focused on social mobility in the IP profession. On 24 September 2019, join us for a discussion with not-for-profit organisations and other businesses around how they are working to improve social mobility within IP and legal professions, and explore strategies for how we can create a more inclusive and diverse working environment.

What’s lined up?

  • Keynote from Nicholas Cheffings, Chair of PRIME
  • Series of short talks from organisations and charities tackling these issues
  • Group discussions to consider how businesses can learn from outreach campaigns and implement similar initiatives in a corporate setting
  • Drinks, bites and networking

When: Tuesday 24 September, 2019

15:30    Registration
16:00    Presentations
18:00    Networking
19:00    Finish

Where: Hogan Lovells, London

Registration: For registration and further information please contact Joshua Prietzel


IP Inclusive are focused on providing training, raising awareness and providing support to IP professionals and making IP professions more inclusive.

Posted in Internet

U.S. government investigates potential threat to e-service providers: France’s Digital Service Tax

On 10 July 2019, the Office of the U.S. Trade Representative (USTR) initiated an investigation pursuant to Section 301 of the Trade Act of 1974 into France’s Digital Services Tax (DST) to determine whether the tax is discriminatory or unreasonable and burdens or restricts United States commerce.

Following an affirmative finding by USTR, the U.S. may take unilateral actions against imports of goods and services from France (including the imposition of a tariff or quota) or may initiate World Trade Organization (WTO) dispute settlement proceedings, among other actions.

Click here to read more

 

Posted in patents Klaas BisschopJoost DuijmLiselotte Cortenraad

Patent Litigation: Dutch Court of Appeal guidance on formal entitlement to priority

On 30 July, the Court of Appeal of The Hague ruled on the formal entitlement to priority following from a US provisional patent application (judgment in Dutch here). The attack on priority in this case is part of a recent trend by parties in patent litigation which aims to challenge entitlement to invoke priority under the Paris Convention and the European Patent Convention.

Background

Biogen Inc., F. Hoffmann-La Roche AG and Genentech Inc. jointly own a European Patent (“EP“) which invokes the priority of a US provisional patent application (“P1“). P1 was filed by the two inventors, as was required under US law at that time. At the time of filing P1, one of the inventors was a Biogen employee (the “Inventor“). The EP originates from an international Patent Cooperation Treaty (PCT) application, which was jointly filed by all applicants of P1 plus additional applicants.

Celltrion claimed that the EP is invalid for lack of novelty, arguing that it is not entitled to invoke the priority of P1. According to Celltrion, the Inventor did not (timely) transfer the priority right to Biogen. The parties agreed that if the EP was not entitled to the priority right, a certain publication would destroy the patent’s novelty.

Biogen argued that the priority right was automatically transferred to Biogen at the time of its creation because the Inventor and Biogen had entered into an “Employee Proprietary Information and Inventions and Dispute Resolution Agreement” (“the Agreement“).

In 2017, the District Court ruled against Biogen and considered that Biogen was not entitled to the priority of P1 (and hence that the EP lacked novelty). Biogen appealed the decision and in its (interim) decision of 30 July, the Court of Appeal ruled on the formal entitlement to priority. However, it has not yet dealt with other validity arguments raised by Celltrion. Continue Reading

Posted in Copyright, intellectual property, patents Zhen FengEugene Low

Investing in China’s TMT sector: What you need to know

China is a market that represents a paradox for many telecoms, media and technology (“TMT“) companies. On the one hand it offers the promise of almost unlimited growth potential if you get the product right, but on the other it presents huge challenges from the regulatory and compliance perspective in terms of establishing a foothold in the market. The challenges include market access restrictions, data localization requirements, to name but a few. The market access and intellectual property protection issues in particular have been the focal point of the ongoing trade negotiations between the United States and China.

The good news is that China has and is likely to further relax restrictions on foreign investment in the TMT sector, regardless of the outcome of the trade war, although it is clear that such relaxations will be implemented to China’s timetable and may not go nearly far enough in terms of meeting the expectations of foreign investors. We have prepared this Guide to help investors understand the challenges and benefit from the opportunities in this rapidly-growing sector.

We’ve included a specific chapter on IP which deals with the following questions:

  • What kind of intellectual property rights are protected under Chinese law?
  • How can IP rights be obtained in China?
  • In what situations may the IP owner lose the IP rights?
  • How to protect and enforce IP rights when an infringement takes place
  • Why is protection of IP rights important for doing business in China and what should I do?

Please click here to download our full guide.

Posted in intellectual property, patents Jason Lohr

Webinar summary: Artificial Intelligence – Getting to grips with basics and legal implications

Jason Lohr (San Francisco) held the first in a series of internal webinars on the basics and legal implications of artificial intelligence (AI) and machine learning, highlighting their relevance to IPMT.

AI touches nearly every industry and is used to solve complex problems, spot and minimize risks, improve decision-making, and develop new products. Key issues and tips for navigating this complex area were covered, including:

  • The current state of AI and key concepts: As AI is still relatively new, the best way to develop a better understanding is to become familiar with the terminology and concepts surrounding AI. Concepts include data classification, inferring information from input data, and identifying objects by comparison with input data-set, machine learning and artificial neural networks (ANN), AI hardware characteristics, and patent filing trends. Further it is important to be able to distinguish between conventional technology, AI, and IoT (the internet of things).
  • Practical uses and instances of machine-learning and AI: Insurance risk analysis, service offering based on user behavior, automated legal document drafting—AI can provide these types of services through identifying and recognizing patterns to make informed decisions that can make our lives more efficient and safe.
  • Predictions of where AI is going: Examining the current state of AI can predict where it is heading. AI should be able to operate autonomously to communicate, create, and perform as a human would, opening up larger issues about Big Data & IoT.
  • AI as a legal tool: AI tools are predicted to affect the legal profession as cloud-based tools become more prevalent among in-house counsel. Law firms can use tools such as Luminance, Nalytics, and Lex Machina to review, analyze, assess, and minimize risks. However AI cannot fully draft a patent or contract, which is why paralegals and associates are still very much needed to conduct the actual legal analysis.
  • Concerns: With the excitement around AI comes concerns. Common issues include concerns over data protection, proof of compliance, due diligence, when to patent AI or machine learning, ethical considerations, risks, and non-lawyer assistance.

If you would like to attend upcoming sessions on this topic or require more details on any of the above issues, please contact Tara Hanley, Joshua Prietzel, or Jason Lohr.

Posted in Cybersecurity, Data Protection & Privacy Paul OttoW. James DenvilJulian Flamant

New York Enacts New Data Security Laws

On July 25, New York Governor Andrew Cuomo signed into law a pair of bills establishing new requirements for businesses that process certain personal information related to New York residents. The changes include expanding the scope of information covered by New York’s data breach notification law; defining breaches to include incidents involving unauthorized access to covered information, even where the information is not acquired; and requiring consumer reporting agencies who suffer breaches of social security numbers to offer up to 5 years of identity theft services. Businesses maintaining the private information of New York residents also will now be required to proactively develop “reasonable safeguards” within their organization as part of a new “reasonable security requirement.”

The “Stop Hacks and Improve Electronic Data Security Act” (SHIELD Act) expands the types of information covered by New York’s data breach notification law by adding:

  • Account numbers and credit or debit card numbers if compromised in circumstances where the numbers could be used to access the associated accounts without additional information;
  • Biometric information, defined as unique physical or digital representations of biometric data “used to authenticate or ascertain” a person’s identity; and
  • Online account credentials (username or e-mail address in combination with password or security question and answer).

Continue Reading

Posted in International/EU privacy Paula Garcia

The ICO Updates Its Data Sharing Code of Practice

On 9 July 2019 the UK data protection authority (ICO) updated its Data Sharing Code of Practice (first published in 2011) (Code). On the same day, the ICO also announced its intention to fine Marriott International just over £99m for infringements of the General Data Protection Regulation (GDPR), highlighting the importance of due diligence in the context of data sharing.

The Code, made under section 121 of the UK’s Data Protection Act (DPA), is publicly available for consultation until 9 September 2019. Once finalised, the Code will become a statutory code of practice under the DPA. Non-compliance with the code will likely be considered non-compliance with data protection laws.

Scope of application and aim

Unlike in relation to the engagement of processors, which is subject to the prescriptive requirements under Article 28 GDPR, the GDPR remains silent about the sharing of personal data between organisations which are controllers (with the exception of the obligations that Article 26 GDPR sets out for joint controllership scenarios). Overall, the Code aims to provide practical guidance on how to share personal data between controllers (i.e. separate/joint controllers) in compliance with data protection law, and promotes good practice recommendations.

The Code mainly covers data sharing by private organisations subject to the GDPR and Part 2 of the DPA, but it also includes a specific section on data sharing under the Law Enforcement regime (Part 3 of the DPA).

Continue Reading

Posted in Artificial Intelligence, Health Care Trey HanburyYarmela PavlovicGeorge John

Internet of Things Webinar Series – Health Care and the Internet of Things: New Regulatory Developments

Mobile phone applications are already tracking intimate health data, including our sleep habits, steps walked, body measurements, nutrition, and more. Apps draw this information from the devices many of us now religiously maintain along with our daily wardrobe. In this data-hungry age, doctors and health care providers can apply artificial intelligence (“AI”) to the data to help them provide patients personalized and immediate help. The mobile applications, wearable devices, and artificial intelligence use are here to stay. But how will the federal government push its regulatory frontiers to permit the use of such technologies?

To highlight the new federal efforts to accommodate these technologies, Hogan Lovells US LLP partners, Yarmela Pavlovic and Trey Hanbury, hosted a Health Care and the Internet of Things: New Regulatory Developments webinar on July 25, 2019.

Continue Reading

Posted in Copyright Patrick FromlowitzBenedikt Lüthge

20-year legal dispute over two seconds of music: CJEU on the never-ending sampling story

German courts have been dealing with the Metall auf Metall [song by the German band Kraftwerk] case for two decades. Recently, the CJEU, too, has had to deal with the case and ruled by judgment of 29 July 2019 (C-476/17) that unless the phonogram producer consents, sampling constitutes an infringement of his rights. However, the CJEU argued, if, by modifying the sample, it can be ruled out that the content is recognizable, there is no infringement of rights.

Background

The Plaintiffs are members of the band Kraftwerk, which, in 1977, released the album “Trans Europa Express”, which includes the title “Metall auf Metall”. The Defendants are the producers Moses Pelham, founder and managing director of the music label Pelham Power Productions (3P), and Martin Haas, who produced the album “Die neue S-Klasse” by rapper Sabrina Setlur, which was released in 1997. The album includes the track “Nur mir”, to which approximately two seconds of a rhythm sequence from Kraftwerk’s “Metall auf Metall” were added (“sampling”), but with the song’s speed reduced by 5% and played in a continuous loop (“loop”). The producers did not obtain prior consent to use this audio fragment, nor was a licence taken.

Continue Reading

Posted in Cybersecurity, Policy & Regulation Federico Hernández Arroyo

Cybersecurity (or lack thereof) under new administration

Tech, Data, Telecoms & Media, Mexico

Introduction

In 2014 the previous administration announced its commitment to creating a national cybersecurity strategy. This strategy formed part of the National Development Plan 2013-2018, which also provided for the national digital strategy – an initiative aimed at fostering digitisation in Mexico through:

  • a digital government;
  • open data;
  • digital inclusion;
  • enhanced digital skills; and
  •  IT-based health, educational and financial services.

Continue Reading