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Global Media and Communications Watch

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

Posted in Technology Theodore J. MlynarIra Schaefer

Blockchain podcast interview: “The taxman cometh” to cryptocurrency transactions

Ted Mlynar and Ira Schaefer from our Blockchain-Smart Contract IPMT Working Group return to the Fordham Intellectual Property, Media & Entertainment Law Journal podcast series following their first episode in November 2017.

Ted and Ira open this podcast with a brief account of Bitcoin’s background and give an overview of the current cryptocurrency landscape. They go on to discuss the following issues related to tax:

  • The 2014-21 IRS notification and how the IRS views cryptocurrency
  • Related implications such as tax on trading, mining and capital gains tax
  • Tax strategy for reporting and blockchain’s limitations for record keeping
  • IRS investigations and related customer data protection / access issues within cryptocurrency wallet companies such as Coinbase
  • Government acceptance of cryptocurrecy for payment obligations such as tax payment
  • Development of cryptocurrecy and the question of “forks” such as Bitcoin Cash and Etherium
  • US tax reform and interpretation of IRS regulation of “like-kind” transfers for cryptocurrencies

Catch the podcast here


For more international information, please visit our Blockchain: Linked Ledgers topic center.

Posted in Data Protection & Privacy

2018 TMT Seminar in Paris on Data and its Implications

On April 11th, Hogan Lovells Paris held its 7th TMT Seminar on “Are Data a source of risk, liability and value?”

At a time when data, personal or not, are all around us, how should we go about considering all of the issues involved?

Charlotte Le Roux, associate in Hogan Lovells Paris’ privacy team, welcomed our speakers and guests, and presented the implications of data in different industry sectors: Banking, Insurance, Automotive and Life Sciences.

Maxime Cartan, co-founder & president of Citalid Cybersécurité, explained how data are everywhere and how they are collected in our daily life. Data are used in all sectors, notably in Banking and Finance, and became as such a valuable intangible asset.

Yet, regulatory constraints, such as data protection law and competition law, limit companies’ use and ownership of data and thus reduce the data value. Winston Maxwell, partner in Hogan Lovells Paris’ privacy team, introduced the steps to the concept of “data nirvana” which guides companies in adapting their data strategy and making the most out of this asset.

The first discussion then took place between François Nédey, Executive Director of P&C and Chief Underwriting Officer in Allianz France, and Christelle Coslin, Counsel in Hogan Lovells Paris’ litigation team. After presenting the current status of autonomous driving in France, they discussed data breaches threats and the insurability against cyber-attacks and on this market. More generally, the question of liability and insurance coverage in case of an accident involving a connected car was addressed.

The second panel discussion was led by Didier Moire, CEO of Cellnovo, and Anne Suliga, associate in Hogan Lovells Paris’ litigation team. Connected devices – such as mobile diabetes management systems – may collect, process and store technical data as well as sensitive heath data. Our speakers discussed how such operations can be a source of value for manufacturers, patients and the health community.

We would like to thank our speakers, our guests and the organisation team.

We remain at your disposal if you have any question or wish to discuss further, and we look forward to welcoming you to our 2019 edition!

Posted in Broadcasting, Digital Single Market (EU), Policy & Regulation

Webinar: TV regulation in a digital age

The trialogue between the European Commission, the European Parliament and the Member States on the revision of the Audio-Visual Media Services (AVMS) Directive is currently in progress, after several years of work by all parties to update the text of the Directive. This update is timely, given the profound and rapid changes in how TV and other video content is delivered and consumed throughout the EU.

In this context, Analysys Mason and Hogan Lovells are publishing a white paper, “TV regulation in a digital age”, which grapples with the changes at play in TV, and unpacks the fundamental differences between different types of video content on the Internet. It acknowledges the new challenges faced by policy makers and regulators in achieving historical policy objectives in this changing environment, but also cautions against an indiscriminate extension of rules and regulations designed for traditional TV to online video.​

To mark the launch of the white paper, David Abecassis and Michael Kende (Analysys Mason) will join Winston Maxwell (Hogan Lovells) to present its main findings and messages.

Webinar details

Tuesday 15 May 2018 at 10:30am (CET), 9:30am  (BST)

Register by clicking here.

Posted in Internet, Technology

The Internet of Things Webinar Series: Product Liability in Europe

On April 11, 2018, Hogan Lovells hosted another installment in its 2018 webinar series on emerging issues involving the Internet of Things (IoT). This webinar focused on product liability in Europe.

New connected products are hitting the market at an unprecedented rate, so staying aligned with the evolving regulatory and legal issues is more important than ever. With the opportunity to hear from those with direct and versatile industry experience, this session promises an insightful and comprehensive look at the most important legal issues, questions, and solutions surrounding product liability.

Valerie Kenyon started the webinar by highlighting the product liability rules applicable to IoT in the EU.  She started with an overview of the Product Liability Directive, and then moved to a consideration of how the directive is being reviewed to see whether it is “fit for purpose” in the future.  Hogan Lovells is very actively involved in the Product Liability Directive consultation and is doing a great deal of work in the context of liability for emerging technologies.

Tobias Faber then went through some practical real-life examples coming from the energy and infrastructure sector. Tobias discussed two cased studies covering a predictive maintenance contract model for gas-fired power plants and a smart factory example from the manufacturing industry which leveraged Artificial Intelligence (AI) to deliver Batch-size 1 productions. One conclusion drawn by these examples is that many traditional business models will be disrupted and are transforming to a more serviced based model which is already common within the IT-industry (Infrastructure as a Service, IaaS). Tobias also touched on the legal challenges of contract conclusion by AI and the liability regime within the new business models.

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Posted in Copyright, Digital Single Market (EU) Dr. Nils Rauer

DSM over lunch with U.S. Copyright Society

We were delighted and honoured to speak at last week’s lunch event of U.S. Copyright Society (CS USA). The Los Angeles Chapter of the CS USA kindly invited Salomé Cisnal de Ugarte (Brussels), Alberto Bellan (Milan) and myself to sit on a panel together with Susan Cleary, Vice President and General Counsel of the Independent Film & Television Alliance (IFTA). The panel discussed the new copyright law in Europe brought about by the Digital Single Market strategy that is currently implemented with the EU, and assessed the antitrust and competition issues arising in this context. Corey Field, former President of the U.S. Copyright Society eloquently moderated the panel with more than seventy participants being welcomed at Fox Rothschild’s fine Century City premises in Los Angeles or attending via remote web access. A lively debate emerged circulating around the underlying question “Are the new EU copyright regulations a weird kind of trade war?

The discussion touched upon various aspects of the Digital Single Market and how it affects U.S. based corporations particularly in the media & entertainment sector. The panel also considered the new Portability Regulation (EU) 2017/1128, the current debate on the draft DSM Copyright Directive COM (2016) 593 and the draft Regulation on Transmissions & Retransmissions of TV and Radio Programs COM (2016) 594. The overall take-away was that the distribution, licensing and use of copyrighted works in Europe will undergo significant changes.

We thank all who joined us for the engaged participation and challenging queries. Special thanks go to Corey Field for his warm words and fine moderation, Jeremy S. Goldman of the L.A. Chapter of the Copyright Society of the USA for his invitation to speak at this lunch event and Fox Rothschild for a brilliantly organized venue.

Posted in Internet, Technology

How to secure the right type of IP protection for wearable-technology products

From wristbands that count your steps, to skin patches that measure your sun exposure, a wide range of products are entering the wearable-technology market and raising new questions about intellectual property (IP) claims and protection. In this hoganlovells.com interview, Katie McConnell, counsel in the Hogan Lovells London office, provides an overview of the unique challenges market players face in the highly competitive field of wearable-technology. Among many other topics, she discusses the benefits of licensing other peoples’ patents; why it can be worthwhile applying for a patent, even if you don’t get it; and the importance of fashion trends.

What is wearable-technology, and how large is the market for it?

McConnell: With wearable-technology, we’re talking about computing technology or access to computing technology in something that you wear. Normally, these technologies have some sort of portable data monitoring ability that can record things like your activities, sleep patterns, or blood pressure. They provide real-time feedback and have some communication functionality, which is important when we’re looking at what sort of IP protection there might be for these devices.

Wearable devices are predicted to grow and grow as an industry over the next five years. In 2017, the International Data Corporation anticipated that 121.7 million devices would be shipped in 2017, which is a 16.6 percent increase over 2016. In the next five years, they expect that pace of growth to continue, with shipments reaching 229.5 million units by 2021.

And there’s a trend that more smart devices will be sold. There’s something interesting going on with the price, too: in the next few years, as the devices become smarter and include more technology, it’s expected that the average selling price will go up, but then as that becomes more the norm, it’s expected to drop off again. So perhaps something similar to what we’ve seen in the mobile device market.

What does this mean in terms of IP protection for wearables?

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Posted in Digital Single Market (EU), Policy & Regulation Dr. Nils Rauer

EU: Cross-border parcel delivery – Council approves final text of regulation

The Digital Single Market, as pushed forward with increasing speed by the European institutions, does not end with the click of a “purchase” icon. Goods ordered and bought online need to find their way to the purchaser, be it a consumer or a corporation. This is why the Commission, as part of its overall DSM strategy published a draft regulation on cross-border parcel delivery on 25 May 2016 (COM (2016) 285). The Commission’s main objectives were to

  • Improve the market’s efficiency through effective regulatory oversight and increased competition, and
  • Improve the price transparency to reduce unjustified tariff differences as well as the prices overall.

On 15 March 2018, we reported that the European Parliament had adopted a final version of the new regulation.

Meanwhile, the Council has also concluded its considerations. It approved the Parliament’s amendments and thereby the final text of the regulation on 18 April 2018. The respective press release, includes the following statement from Ivaylo Moskovski, Bulgarian Minister for Transport, Information Technology and Communications:

These rules will make information about different parcel delivery options more readily available – including track and trace services, which are important for e-commerce. The adoption of these rules means that another key element of the EU’s digital single market is in place.

The Regulation will be published in the Official Journal by the end of this month and will come into force twenty days thereafter. According to Article 13 of the new regulation, the Member States will have to adopt “effective, proportionate and dissuasive” penalties, which they should notify to the Commission within eighteen months.


For further information on the Digital Single Market and its practical impact, please visit our website www.dsmwatch.com.

Posted in Advertising Anthonia Ghalamkarizadeh

Adblocking reloaded: No unfair competition, says German Supreme Court

Germany’s highest civil court signs off on the business model behind AdBlock Plus

The popular adblocking software AdBlock Plus, and the underlying business model of Eyeo GmbH, do not fall foul of German unfair competition rules. On 19 April, the German Federal Supreme Court (BGH) handed down its landmark ruling on the legality of adblocking (BGH, file number I ZR 154/16). Given that AdBlock Plus is highly popular throughout the world, the decision will have repercussions for online advertising and for publishers of online content far beyond the borders of Germany.

If you missed our previous blog posts on the adblocking battles raging in Germany since 2015, you can catch up here.

Online advertising vs adblocking

Both digital advertising and its counterpart, adblocking, have been on the rise for years. Revenue from digital advertising has been forecast to grow by some 12 percent annually, to nearly 240 billion USD in 2019, according to PWC. And the flip side of the equation: According to the 2017 PageFair Report, 11% of the global internet population is blocking ads, and those numbers are increasing. Researchers expect that even if content publishers took all available countermeasures, adblocking would still cost them 16 billion USD globally by 2020. Should they take no action, these losses could increase to as much as 78 billion USD, says Ovum, the research arm of Informa Group.

In our digitally driven economy, the business stakes are clearly high. Just as publishers and advertisers vye for the attention of internet users, adblockers meet conflicting demands to be spared from overly intrusive and annoying ad content. Today, adblocking features are available for all major browsers – either inbuilt or available as add-ons, such as Adblock Plus. By and large, users are increasingly unhappy about the ways that advertising can affect their online experience; and by activating adblocking, they take action to change that.

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Posted in Internet, Policy & Regulation, Technology

Upcoming meeting signals the growing role of federal regulators over IoT and product safety

The U.S. Consumer Product Safety Commission (CPSC) will host a hearing on May 16, 2018 on potential safety hazards associated with internet-connected consumer products.  With primary jurisdiction over consumer product safety, the CPSC’s evaluation of risk affects everything from design evaluation to mandatory recalls.  The CPSC will use the information the public provides at the hearing and in written comments to the agency to inform its ongoing risk management work.  The hearing therefore is an opportunity for the public to help shape best practices and possible regulation for mitigating potential new hazards resulting from the introduction of internet connectivity to consumer products.

The hearing will be webcast.  Members of the public interested in speaking at the hearing must submit their requests to make oral presentations, along with the written text of those presentations, by 5 p.m. on May 2, 2018.  The Commission will accept written comments through June 15, 2018, at Docket No. CPSC-2018-0007.  Hogan Lovells will cover the full-day meeting and provide interested clients with an in-depth summary of the meeting.  If there are particular subjects of interest, please let us know.

Background

The CPSC is an independent federal agency created in 1972 by the Consumer Product Safety Act (CPSA).  The agency is responsible for protecting the public from unreasonable risks of injury or death associated with the use of consumer products.  The CPSC conducts research into product-related illness and injury and oversees recalls of consumer products due to safety hazards.  It also has authority to issue regulations governing the manufacture and sale of consumer products, including establishing safety or design standards for particular product categories (e.g., toys, lawn mowers) or to ban certain hazardous products (e.g., lead-based paint, lawn darts).  CPSC also mandated that firms  report potentially unsafe products to the Commission.  The failure to report in a timely fashion can subject a firm to up to approximately $16 million in civil penalties.

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Posted in Advertising, e-commerce Anthonia GhalamkarizadehThomas Richter

“BLACK FRIDAY”: Not a trademark, just a day for special shopping deals

Hogan Lovells assists PayPal in securing an important victory for German retail

Decision of the German Patent and Trademark Office of 27 March 2018 (ref. no. 30 2013 057 574 – S 33/17/Lösch)

The German PTO has seen the light in the dark of the “Black Friday” battles: The term has been declared free for all to use in commerce, signaling the end of a trademark monopoly that has been aggressively exercised against German retail during the past 18 months. Hogan Lovells, represented by Anthonia Ghalamkarizadeh and Dr. Thomas Richter, assisted PayPal in securing this important victory for the entire German retail market.

The words “Black Friday” resonate with bargain hunters across the globe. Black Friday, the day after Thanksgiving, has a long tradition of special deals and promotions. It is by far the most profitable day of the year for retailers in the US, where the tradition originated. And in the age of global e-commerce, Black Friday as a day for special sales promotions has also become entrenched in many other markets, including Germany. So the commercial attraction of the phrase “Black Friday” is obvious – and holding a monopoly over its use in advertising and retail would be highly profitable. Hong Kong based Super Union Holding Ltd. went down this road when it obtained a German trademark registration for “Black Friday” that covers nearly every retail service under the sun. Following the acquisition of the mark in 2016, the trademark owner and its licensee Black Friday GmbH started to aggressively monopolize and capitalize on the word mark. Numerous retailers in Germany received propositions for expensive licensing deals or were slapped with cease and desist letters warning them off a use of “Black Friday” in their sales promotions. The aggressive enforcement culminated in a lawsuit with significant damages claims against a leading global online shopping platform.

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