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Global Media and Communications Watch

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

Posted in Policy & Regulation, Technology Mark BrennanBret Cohen

Consumer Horizons 2019

The Consumer industry is evolving at lightning speed, and the way consumer companies operate is shifting. From issues in supply chain to the digitalization of the consumer experience, companies are rapidly changing to keep up with consumer demands. Last year businesses in the consumer industry saw a wave of unprecedented disruption and transformation, and 2019 promises challenges of similar or greater magnitude.

In this year’s edition of Consumer Horizons, the Hogan Lovells global Consumer team identifies trends that will impact food and beverages companies, fashion and luxury goods producers, retailers, consumer electronics manufacturers, and other consumer companies throughout 2019.

Our team breaks down disruptive technology, sustainability and corporate responsibility practices, privacy and consumer data issues, shifting sales models, supply and sourcing matters, M&A and capital markets, and more – all with a look at global perspectives.

Privacy and technology topics include:

  • Technology trends that will reshape e-commerce in 2019
  • Online platforms: New proposal impacting B2B relationships
  • Blockchain: Recent developments and predictions for 2019
  • Virtual social influencers
  • 3D-printing and IP rights
  • New EU rules on geo-blocking impact all online retailers selling within the EU
  • The impact of intellectual property on artificial intelligence
  • Drones in retail
  • Data privacy laws disrupting digital ecosystem
  • Connectivity, smart technologies, and consumer data
  • Are your calls and texts compliant? An update on TCPA
  • The California Consumer Privacy Act of 2018 (CCPA): Privacy law in the U.S. is changing dramatically
  • The FTC sinks its teeth into subscription sales- ROSCA
  • Personalized shopping in Asia

Download Consumer Horizons 2019 by registering here.

For further information, please visit our Consumer Industry page on HoganLovells.com.

 

Posted in patents Dominic Hoar

UK AIPPI rapid response event: Actavis v ICOS (tadalafil) Supreme Court judgment

On 4 April 2019 Hogan Lovells hosted this event, in which Tom Mitcheson QC and Mark Chacksfield QC (who acted against each other) gave their views on the Supreme Court’s decision on inventive step in a case related to the drug tadalafil (Cialis), a PDE5 inhibitor for erectile dysfunction.

Here is a potted history of the case:

Claim 10 of the Lilly/ICOS Patent read: “Use of a unit dose containing 1 to 5mg of a compound having the structure [of tadalafil] for the manufacture of a medicament for administration up to a maximum total dose of 5mg of said compound per day in a method of treating sexual dysfunction in a patient in need thereof”. Such a dose reduced side effects and enables regular daily dosing. That is in contrast to the conventional application of ED drugs (Viagra, sildenafil), which is “on demand”.

Birss J thought the claim inventive, notwithstanding that it was the result of a clinical programme with many routine and obvious steps from a starting point of a 50mg tablet. Some key (to me) factors on the path for the skilled team were that they would:

  • not at the outset know there was a therapeutic plateau at 25 or 10mg
  • not initially know that tadalafil had a longer half-life
  • would have had no reasonable expectation that 5mg would have had a clinically-relevant effect, or one with minimal side effects

Kitchen LJ disagreed. He thought that, on the judge’s findings, the invention lay at the end of a familiar path through pre-clinical and clinical trials. The skilled team “would embark on that process with a reasonable expectation of success and in the course of it they would carry out Phase IIb dose ranging studies with the aim of finding out, among other things, the dose response relationship. It is very likely that in so doing they would test a dose of 5mg tadalafil per day and, if they did so, they would find that it is safe and efficacious. At that point they would have arrived at the claimed invention.”

On appeal to the Supreme Court, Lilly argued that the CA had not applied the test of obviousness correctly under the UK law or the EPO’s approach of finding invention where there was an unexpected technical effect (here, reduced side effects at a dose that worked). Actavis supported the CA’s view: as a matter of policy, routine work cannot be patentable.

Lord Hodge (with whom the other Lords agreed) upheld the CA’s decision.

  • He considered that the CA had been right to carry out its own evaluation of obviousness since Birss had committed an error of principle in failing to appreciate the logical consequences of his finding, that it was likely the skilled team would continue testing. Lord Hodge then carried out his own analysis of the facts, which supported the conclusion of Kitchen LJ. He noted that the claim was not limited to administration once per day and also covered on-demand use.
  • On obviousness, Lord Hodge considered that both the UK and EPO case law were glosses on the statutory test, and neither the Windsurfing nor PSA approaches should be applied mechanistically. He then set out at paragraphs 64 – 77 ten factors that were relevant in the context of the case: key ones being relied upon by Lilly being ‘surprising result’ (#7) and ‘bonus effect’ (#9), the latter not being referred to (sadly) as ‘the Brucie Bonus’.
  • The EPO and other European courts were not a burden:
    • Although the patent had been litigated elsewhere in Europe (Belgium and Portugal, and Denmark, Poland and the Czech Republic) with mixed results, he did not find the judgments helpful. Where the law was the same, courts may nonetheless come to different conclusions. Even where the evidence is the same, a court’s findings of fact based on that evidence may not be the same.
    • The EPO’s PSA is not the only method used by the EPO and is also a gloss. Nor was Lord Hodge convinced that the PSA would necessarily have given a different answer. (With the ‘necessarily’ being rather compacted – and an acknowledgement that there will sometimes be different answers)
  • On selection patents, Lord Hodge was keen not to rule them out. Efficacious drugs discovered by research involving standard pre-clinical and clinical tests should be rewarded with a patent if they meet the statutory tests, even if the enquiries made as to it are otherwise well-established or routine enquiries. Further, inventive step may occur “if the selection is not arbitrary and is justified by a hitherto unknown technical effect”.
  • Yet, Tom noted, the EPO has granted patents in very similar circumstances to these: see G02/98, and T91/98 in which the unexpected and advantageous result was that the compound was effective at such low concentrations.

To me the outcome feels rather tough on the patentee. Consider Kitchen LJ’s “familiar path” through trials. Is a path really “familiar” when it takes unexpected turns (therapeutic plateau, long half-life) and ends in a surprising location (efficacy at 5mg daily with reduced side effects)? One could hardly describe as ‘familiar’ a path through woods if the features it passed were unexpected and the destination a surprise. Unexpected technical effects are often good enough at the EPO but were not good enough here, in this case.

Tom then picked up the following points:

  • Do we have a new ground of appeal: that the judge failed to appreciate the logical consequences of his finding? If so that is likely to make it easier to get an appeal up and running in the future. It is also hard to distinguish the Supreme Court’s reasoning from straightforward interference with a judge’s finding on a multifactorial test, which could have some significant consequences.
  • The English courts appear to be drifting further from the Europe courts and the EPO. In Actavis v Lilly, Lord Neuberger was keen to follow Germany, which was subsequently watered down in Warner Lambert and, now, more so. There are some parallels in current affairs, right there.
  • It hasn’t really changed the law all that much. We now have a list of ’10 factors’ that will be quoted for ever more, but no guidance as to any relative weighting to be applied to them. The Supreme Court has not given us much help in resolving similar issues in the future.
  • The decision was very different in tone to Warner Lambert and Lilly v Actavis. It was more conservative, and less certain in its rightness. There was a hint of Lord Neuberger in it. It will be interesting to see how Kitchen LJ’s voice affects the overall tenor when he joins the Supreme Court.

Mark, I think recently returned from court, chipped in with the following:

  • This is the Supreme Court stressing the statutory test for obviousness, all the rest being gloss and not obligatory. Lord Hodge will no doubt be disappointed when in five years’ time we are all quoting his 10 factors.
  • The most interesting of the factors is the interaction with the surprising and unexpected finding that efficacy could be achieved without big side-effects. Birss J had in mind that efficacy and side-effects would be expected to go hand-in-hand and that the realisation that they did not was capable of producing invention.
  • In paragraph 92 of the decision, Lord Hodge says that Conor v Angiotech “is not authority for the proposition that, in all circumstances, obviousness must be assessed by reference to the precise wording of the claim.” This sentence is likely to cause problems if it is used to dilute the basic proposition in Conor.

In summary, one could define the case (as Tom did) as “MOVE ALONG, NOTHING TO SEE HERE”. We will have to wait to see how it is applied, and whether anything more exciting arrives when the Supreme Court looks into sufficiency for Regeneron.

First published by The IPKat on 17 April 2019.

Posted in Policy & Regulation, Technology Natalia Gulyaeva

2019 Chambers Global Practice Guide in Technology, Media, and Telecoms

A team of lawyers from Hogan Lovells contributed to the 2019 Chambers Global Practice Guide in Technology, Media, and Telecoms. They provided legal commentary and insights on TMT industry trends and developments impacting businesses in Russia and the Commonwealth of Independent States.

The chapter “TMT Trends and Developments in Russia” provides an overview of mass media and online cinema markets, as well as technology and telecom markets in Russia. It addresses foreign ownership restrictions in mass media and the online cinema industry, big data collection, and use issues. It also covers the IT resources blocking issues as well as data localization and storage requirements and their impact on industry. A PDF version of the chapter is available here.

The Hogan Lovells authors include: Oxana Balayan, Managing Partner, head of the Corporate/M&A practice for the Moscow office; Natalia Gulyaeva, head of the IPMT practice for the Moscow office; Maria Kazakova, a senior associate in the Corporate/M&A practice; and Roland Novozhilov, an associate in the IPMT practice.

The Hogan Lovells Moscow office team has a distinguished track record in the Russian TMT market, including expansion of the world’s leading TMT businesses into Russia. They offer clients strategic advice on transactional, IP, regulatory, commercial, and antitrust issues impacting the TMT industry.

Posted in Copyright, designs, Internet, Policy & Regulation Julia Anne MathesonBrendan C. Quinn

N.D. California Straightens Out Competitor’s Use of Infringing Hashtags: #newdevelopments in Using Trademarks as Hashtags

The Northern District of California recently released an order that sheds new light on how courts grapple with the constantly-increasing use of trademarks as hashtags.

Align Technology, Inc., provider of the Invisalign teeth-straightening-system, also produces the iTero Element intraoral scanner that allows dentists to obtain three-dimensional scans of a patient’s mouth, teeth, and gums. To complement this product, Align sells single-use protective sleeves that cover the portion of the iTero Element scanner inserted into a patient’s mouth. Strauss Diamond Instruments, Inc. produces a version of the protective sleeve meant to compete with the sleeves produced by Align.

Align sued Strauss in federal court for preliminary injunctive relief to enjoin, among other activity, Strauss’ allegedly infringing use of “#invisalign” and “#itero,” both of which are Align’s registered trademarks, in various advertisements. On April 12, 2019, the Court granted Align’s motion in part, granting a preliminary injunction on Strauss’ use of the hashtags.

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Posted in Data Protection & Privacy, International/EU privacy, Policy & Regulation Joke Bodewits

Will Widened Class Actions Regime Boost Data Litigation in the Netherlands?

On 19 March 2019, the Dutch Senate approved legislation introducing collective damages actions in the Netherlands (the “Legislation”) which will broaden the regime even further. The Legislation introduces an option to claim monetary damages in a “US style” class action, including for violations of the GDPR. This Legislation together with the mechanisms already available under Dutch law put the Netherlands at the forefront of collective redress in Europe. The Legislation is expected to enter into force in July 2019 and will apply to events which took place on or after 15 November 2016.

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Posted in Deal Trends, intellectual property

M&A 2018 in Review and 2019 Outlook: IP in the mix

Around the globe and across a wide variety of industry sectors, our IP practice collaborated with our corporate and other practice areas of our firm to provide integrated legal services for our clients and friends on exciting, challenging, and innovative M&A transactions, and shared many successes throughout 2018. Once again, your transactions propelled Hogan Lovells to top 10 M&A rankings globally, as well as top 10 rankings in Europe, Asia-Pacific, the United States, the United Kingdom, Germany, France, and Russia.

We are pleased to share with you our 2018 M&A Year in Review which includes our 2019 M&A Outlook and highlights several of our shared successes. Our IP practice collaborated in many of these transactions including:

Aerospace, Defense, and Government Services

  • We advised KBR, Inc. on its US$355m acquisition of SGT, Inc., an engineering, mission operations, scientific, and IT service solutions provider to the U.S. government
  • We advised Smiths Group Plc, a leading technology-driven global engineering company, on its US$345m acquisition of United Flexible, Inc., a maker of parts for aircraft engines, from private equity firm Arlington Capital Partners.

Automotive and Mobility

  • We advised Daimler on the creation of a joint venture with BMW to form Europe’s leading innovative mobility services business.
  • We advised FlixBus on the international roll-out of its services into other markets, including the acquisitions of numerous ticket platforms and bus companies across Europe, its expansion into the railroad business, and its entry into the U.S. market.

Consumer

  • We advised global commerce leader eBay on its acquisition of the Japan business of Giosis Pte. Ltd., including the Qoo10.jp platform.
  • We advised Walmart Inc. on its US$16bn acquisition of a 77% stake in Flipkart Group, a prominent India-based e-commerce marketplace company.

Life Sciences

  • IPMT collaborated on our annual LS&HC Horizons publication, a compilation of our global team’s perspectives on more than 30 hot topics impacting the industry such as digital health, cell and gene therapies, drug pricing, and M&A trends.

Diversified Industrials

  • We advised Honeywell on its approximately €425m acquisition of warehouse automation solutions provider Transnorm from IK Investment Partners.
  • We advised SABIC, a global leader in diversified chemicals, on its landmark joint venture with ExxonMobil.

Financial Institutions

  • We advised GE Capital, the financial services division of General Electric (GE), on the sale of a US$1.5bn health care equipment finance (HEF) portfolio from GE Capital’s HEF business to TIAA Bank, a provider of nationwide banking and lending services. Additionally, we advised GE Capital on a five-year vendor financing agreement with TIAA Bank for U.S. customers of GE Healthcare.
  • We advised long-standing clients Lloyds Banking Group and Scottish Widows on the acquisition of Zurich’s UK workplace pensions and savings business.

TMT

  • We advised Adobe Inc. on its US$1.68bn acquisition of Magento Commerce and its US$4.75bn acquisition of Marketo, Inc. The Marketo transaction is Adobe’s largest acquisition to date.

Read the full report here


For more analysis, visit Deal Dynamics, our M&A data tool featuring interactive maps and deal tables of cross-border M&A activity by market and industry sectory with editorial content providing insights on the most recent trends in cross-border M&A.

Posted in Copyright, designs, intellectual property Patrick Fromlowitz

EU: “Der Grüne Punkt” is not a trademark used for packaged goods

“Der Grüne Punkt” is a concept that presumably everyone in Germany is familiar with; recently, the financing symbol for participation in the dual collection and recovery systems was the subject matter of proceedings before the General Court (GC). The General Court’s main task was to examine the question of whether proven use of the trademark on packaging is sufficient to prove that the trademark is, at the same time, also used for the packaged goods themselves.

Background

In 1996, Duales System Deutschland GmbH registered “Der Grüne Punkt” and the corresponding figurative sign with the European Union Intellectual Property Office (EUIPO) as a EU collective mark. Subsequently, the company granted licences in the trademark to third parties for participation in a dual disposal system for product packaging. After the Cancellation Division of EUIPO had partially granted an application for revocation of the trademark due to non-use, the proprietor of the trade mark filed an appeal against the revocation, which was initially unsuccessful. Its subsequent action before the General Court was directed against the dismissal of the appeal.

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Posted in Data Protection & Privacy, International/EU privacy Eduardo Ustaran

The EDPB’s Narrow View of Contractual Necessity

The European Data Protection Board (EDPB) has adopted the narrowest possible interpretation of ‘contractual necessity’ as a ground for processing of personal data. The Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects (adopted on April 9, 2019 and open for consultation until May 24, 2019) provide a detailed assessment of the regulator’s interpretation of the law.

Article 6(1)(b) sets out one of the six possible lawful grounds for personal data processing under the European Union’s General Data Protection Regulation (GDPR). It states that processing will be lawful where it is either necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract. The EDPB’s guidance is explicitly intended to ensure this lawful basis for processing is only relied on where appropriate. When the legal basis is inappropriate for one or several processing operations, the justification must be found elsewhere.

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Posted in Policy & Regulation, Technology Michele FarquharEugene Kim

2019 Winnik International TMT Forum: Media and Technology Convergence Panel

The 2019 Winnik International TMT Forum hosted by Hogan Lovells featured a panel discussion on technology and media convergence. Logan Breed, antitrust partner at Hogan Lovells, moderated the discussion as six thought leaders in media, technology, and competition law grappled with business and legal issues related to industry convergence. Panelists included Jeffrey Eisenach from NERA Economic Consulting, Richard Greenfield from BTIG, Gabrielle Kohlmeier from Verizon, Joshua Wexler from Pure Imagination Studios, and Hogan Lovells partners Falk Schoening (Brussels) and Sheri Jeffrey (Los Angeles).

Recent Industry Trends and Developments

Technology, media, and telecommunications (“TMT”) industries have undergone seismic shifts in recent years as they respond to evolving market realities. Netflix, Amazon, and others have capitalized on the democratization of media distribution, bypassing traditional pathways and upending consumer expectations. Major mergers like AT&T-Time Warner and Disney-Fox highlight the consolidation underway for legacy media incumbents. Technology companies and media incumbents are increasingly at odds as the lines continue to blur between the two industries.

Meanwhile, the pace of technological development continues to create new markets for media consumption. Compared with radical new experiences that marry media and tech, over-the-top video services like Netflix and Amazon are beginning to look as staid and commonplace as their cable counterparts. Immersive virtual reality or augmented reality experiences promise to change the way we interact with our entertainment. The development of 5G networks will also unleash new potential as innovators leverage the speed, capacity, and latency of this next-generation network. As Joshua Wexler observed, we are witnessing the rise of a new form of entertainment as innovators leverage technological advances to blur the line between the physical and digital world. One thing is clear—the landscape for content creation, delivery, and consumption is vastly different today than even a few years ago.

Convergence and Competition

Panelists identified two major trends driving the evolution of media and technology industries in both the U.S. and across the globe. As Rich Greenfield highlighted, tech companies (e.g., Netflix, Amazon) are investing large sums in order to disrupt traditional media companies. Meanwhile, telecommunications and media companies are consolidating as part of what Mr. Greenfield described as a survival strategy (e.g., AT&T’s acquisition of Time Warner). Sheri Jeffrey also noted that when consolidation or convergence fail, traditional media and new technology companies can still find common ground through strategic relationships and investments.

How Should Regulators Respond

The panel agreed that U.S. regulatory regimes have been slow to adjust to changing market realities. Logan Breed noted that in some cases regulatory divergence adds another layer of complication. Traditionally regulated media companies are now competing with unregulated new tech entrants and certain regulatory agencies’ powers are too narrow to address these cross-industry concerns (e.g., the FCC). Breed queried how regulators should approach this imbalance and whether we should regulate companies in this space at all.

Jeffrey Eisenach believed that addressing this imbalance may require “regulating up” (i.e., imposing traditional regulations on new entrants) or “regulating down” (i.e., removing traditional regulations on incumbents). In his view, the United States has traditionally engaged in the latter, but the law (and especially antitrust policy) “need[s] to keep adjusting” to address the fact that all of these companies now compete against one another. Greenfield agreed, specifically referencing the FCC broadcast ownership rules as an example where traditional regulation has prevented media companies from consolidating in order to compete with companies like Netflix. In Gabrielle Kohlmeier’s view, rather than focusing narrowly on whether to regulate up or down, it may make more sense for regulators to take a step back to determine what the appropriate regulations are for the current landscape – which could mean replacing current regulations with entirely new ones.

Recent Regulatory Developments

Some panelists suggested that slow action, however, should not be confused with a lack of action. As Kohlmeier noted, the Federal Trade Commission recently created a Technology Task Force, which could signal an increased willingness on the part of federal regulators to pursue antitrust enforcement in the tech space. At the state level, various Attorneys General have expressed concern about Silicon Valley’s consolidation of market power. The Department of Justice (“DOJ”) also unsuccessfully sued AT&T in order to stop AT&T’s merger with Time Warner. (Assistant Attorney General Makan Delrahim offered his perspective on DOJ antitrust activity during the Winnik Forum Fireside Chat.) As these actions suggest, in the U.S., antitrust law may be the legal tool best-suited to address issues created by convergence.

Rethinking Market Definition?

Nevertheless, the panel also agreed that antitrust law is struggling to address the complex issues raised by convergence. The problem is foundational: How does one define the relevant product market? Kohlmeier explained that, from an antitrust perspective, it is not enough to simply say that a company is engaging in anticompetitive conduct generally. Rather, the complaint must specifically identify the harm caused and in which market it is occurring. Breed added that this has become increasingly difficult as convergence has prompted a “totally different way of thinking about traditional markets in the sense that we’ve always talked about them in the media and tech space.” Citing the DOJ’s successful lawsuit against Microsoft for packaging its operating system and Internet browser, Breed mentioned that the problem of defining the relevant product market in these industries is not entirely new. Eisenach agreed, noting that antitrust policy has “a long way to go” to liberalize the way it defines TMT markets. Kohlmeier noted that antitrust issues related to TMT convergence and changing business models are not just showing up in the merger context. To better understand how market power is being exercised, she suggested that regulators also consider how convergence is affecting business incentives and how such incentives manifest (e.g., contract provisions).

Convergence and Globalization

Companies operating in the TMT space must also consider the international regulatory landscape. TMT markets are increasingly global, and antitrust regulators outside the U.S. are, in some cases, more active and have stricter enforcement regimes. Kohlmeier identified two issues for international regulators: (1) how will these regulations affect businesses in the U.S. that are outside the law’s extraterritorial reach, and (2) how will international regulations affect U.S. policy, such as how the EU’s General Data Protection Regulation (“GDPR”) prompted the California Consumer Privacy Act?

Falk Schoening suggested that there may be political dynamics at play for international regulation. He noted that although the TMT sector is increasingly global, some worry that convergence activity is dominated by the U.S. and China. EU politicians may thus have political incentives to support increased regulation in the TMT sector. He added that because other forms of regulation have thus far not been successful at constraining TMT companies in the way EU regulators would hope, the European Commission and many European member states are actively looking to deploy antitrust tools that are perceived to be better suited to confine the Silicon Valley tech giants. In this environment, Schoening cautioned that we should expect to see more antitrust enforcement in the EU and in other international jurisdictions as well.

Due to antitrust law’s case-by-case analysis, international regulations may also lead to conflicting decisions by different antitrust regulators in jurisdictions all over the world. Such inconsistency makes it difficult for businesses to define a global strategy. Schoening provided some practical advice to address this concern. Because European regulators are viewed as having the strictest enforcement approach, global firms should use European laws as a compliance marker. If a business’s activities pass muster in Europe, then there should be less risk of violating antitrust laws in more lax jurisdictions. In fact, in a multijurisdictional investigation, other jurisdictions may be likely to follow the European Commission’s lead.

Looking Forward

Media and technology convergence issues are coming to a head as government authorities across the globe adapt regulatory frameworks to respond to this evolving landscape. Formerly distinct products now compete and act as substitutes in many cases, throwing a wrench into traditional antitrust analysis. Consumer wariness also continues to grow as a small group of companies holds outsized control over media content. Regulators across the globe are actively exploring how to address this new reality using both existing regulatory tools and new regimes. Whatever the ultimate framework, the lessons drawn from the adaption of competition law will be crucial as convergence continues to transform global markets.

 

Posted in Copyright, Policy & Regulation Penny ThorntonAlastair ShawMorten PetersennWinston MaxwellBenedikt LüthgeAlberto BellanAnne Schmitt

DSM Watch: EU Copyright Directive clears the finish line

On 15th April the Council of the European Union adopted the EU Copyright Directive (the “Directive”), ending a negotiation process which first started with the Commission’s proposal for a new Directive in early 2016. After publication in the Official Journal of the EU, Member States will have two years to implement the Directive. In Council the UK voted to adopt the Directive, but it’s by no means certain that the UK will implement it. If the UK leaves the EU without a deal it will not be bound to do so, nor will it if any “deal” transition period expires before the Directive implementation period expires.

The Directive is the most substantial revision of EU copyright laws in years and will shape the digital market for years to come. It is aimed at modernising for the digital age and further harmonising EU copyright laws. Key changes include revising the exceptions to infringement; reinforcing the position of rightholders in relation to the use of user-uploaded content by online content sharing services; creating a new right for press publishers in relation to the use of their content online and giving increased protections to authors and performers. Our run down of the whole text is here, with deep dives on the provisions relating to online content sharing services (Article 15) and the new press publishers’ right (Article 17), here and here.