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.
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.
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).
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).
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.
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.
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.
Tech, Data, Telecoms & Media, Mexico
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.
Click here for text in Russian/текст сообщения на русском языке
Russia is facing potential restrictions of foreign ownership in digital companies. This follows on similar restrictions over Russian mass media companies and online cinemas which took effect in 2016 and 2017, respectively. These proposed amendments coincide with the announcement of major e-commerce and foodtech JV deals in Russia with participation of Mail.ru, the owner of Russia’s top social network VKontakte (a JV with Alibaba, Megafon and the Russian Direct Investment Fund (RDIF) as well as a JV with Sberbank).
In particular, on 26 July 2019, Mr. Anton Gorelkin, member of the Russian Parliament, proposed a draft law introducing amendments to the Federal Law on Information, Information Technologies and Protection of Information (the “Draft Law“). The Draft Law provides for restrictions in relation to foreign shareholding in certain Internet / information resources in Russia. The scope of restrictions and consequences of incompliance are similar, although not identical to the above-mentioned rules on foreign control over mass media and online cinemas which led to a substantial modification of the media industry in Russia in 2015 – 2016.
The restrictions introduced by the Draft Law shall not apply automatically to all Internet / information resources, but only to those which have been recognised as “significant information resources” upon decision of the Governmental Commission.
According to the author of the Draft Law, the Draft Law primarily targets such Russian Internet giants as Yandex and Mail.ru, and potentially major Russian mobile operators, including MTS and Vimpelcom in the attempt to have Russian companies and individuals as ultimate beneficial owners of these assets. However, due to the vagueness of the criteria used in the Draft Law, the Russian Government shall have discretion to impose restrictions on any Russian or foreign marketplace or information resources. Leading players and platforms in this sector in Russia include Ozon.ru, Alibaba.com, Google and others.
We are delighted to welcome Samantha Brinkhuis to our IPMT practice today, 1 August. Based in Amsterdam, she joins us from De Brauw Blackstone Westbroek. With extensive experience in both contentious and non-contentious matters, Samantha primarily assists clients with trademark, copyright and unfair competition matters. Her practice also covers trade secrets, media and entertainment law, advertising law, IP transactions, licensing, IP strategy and enforcement.
Burkhart Goebel, Head of the IP practice at Hogan Lovells, said: “Samantha is a strong addition to our Intellectual Property, Media and Technology practice. Her reputation in the market is outstanding and her cross-sector experience is a great asset.”
Samantha Brinkhuis added: “I am excited to join Hogan Lovells, a law firm of global scale and prestige with a highly regarded IP team. I am committed to providing clients with the best possible solutions to the legal challenges they face.”
This news was announced in May on HL.com as well as in other publications in English (WIPR, IPPro) and Dutch (Advocatie, Boek9.nl, Ie-forum.nl). Samantha joining us follows our continuing expansion with the the additions of Simon Roberts and Jason Leonard joining our practice group in New York and four new lateral partners in our San Francisco and Boston offices – Krista Schwartz, Patrick Michael, Kristin Connarn, and Bob Underwood.
Please join us for our August events.
Cybersecurity Policies and Strategies Forum
Shee Shee Jin will discuss data analytics and data sharing on a panel covering “Big Data” and will present a session on “HIPAA Regulatory Trends” at the South Carolina Primary Health Care Association’s inaugural Cybersecurity Policies and Strategies Forum.
Location: Greenville, South Carolina
International Data Transfers
Eduardo Ustaran will speak on a DataGuidance webinar on international data transfers.