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Global Media and Communications Watch

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

Posted in Cybersecurity

Hogan Lovells Privacy and Cybersecurity Practice Ranked as a Top-Tier Practice by Chambers USA for 8th Consecutive Year

Chambers USA recently released its 2019 rankings and we are pleased to announce that Hogan Lovells’ Privacy and Cybersecurity (PaC) practice once again received Band 1 recognition by Chambers USA. Chambers noted that PaC “[r]emains one of the country’s preeminent privacy and data security practices. A highly talented roster of attorneys advising clients on major data breaches and complex policy matters across a multitude of industries, including retail, automotive and media.”

Several of our team members also were individually recognized. Marcy Wilder, PaC’s global co-lead, was ranked in Band 1 of the Privacy & Data Security: Healthcare category. Harriet Pearson was ranked Band 1 in the Privacy & Data Security category. And Chris Wolf, PaC’s former co-lead and current senior counsel, was recognized as a senior statesperson in the Privacy & Data Security category. Click here to read what Chambers USA reported about these PaC team members.

Posted in Internet Jane SeagerMaria Różyło

WIPO Domain Name Dispute Resolution: One Americano, please!

In a recent decision under the Uniform Domain Name Dispute Resolution Policy (UDRP) before the World Intellectual Property Organization (WIPO), a Panel refused to order the transfer of a Domain Name because the Complainant failed to demonstrate that the Respondent registered the domain name in bad faith.

This decision serves as a reminder that having a trade mark does not necessarily mean that the rights holder will succeed in obtaining the transfer of a domain name, even if it is identical to such trade mark.  The UDRP requires complainants to prove, on the balance of probabilities, that the domain name in question was both registered and used in bad faith, and so cases where the respondent registered the domain name with the complainant’s consent (often involving ex-distributors) are usually doomed to fail.  Sometimes this can result in a rather unjust result for the complainant, which is why a number of country-code Top Level Domains have decided to adopt procedures only requiring registration or use in bad faith.

Background

The Complainant was Bialetti Industrie S.p.A. of Brescia, an Italian supplier of coffee-making equipment. The Respondent was Gary Valenti Inc. of Maspeth, New York, a former distributor of the Complainant on the American market. The Domain Name <bialettiusa.com> was registered in 1999 and previously resolved to a website mainly offering the Complainant’s products for sale.  It was now resolving to a website consisting of the phrase “For Bialetti Spare Parts Click Here”, which simply led to an email address.

UDRP procedure

To be successful in a complaint under the UDRP, a complainant must satisfy the following three requirements under paragraph 4(a):

(i) the domain name registered by the respondent is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; and

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

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Posted in Artificial Intelligence, Data Protection & Privacy Mark BrennanBret CohenFilippo Raso

NIST Seeking Input on AI Technical Standards by May 31, 2019

On May 1, 2019, the National institute of Standards and Technology (NIST) announced a Request for Information (RFI) in the Federal Register regarding ongoing efforts to develop technical standards for artificial intelligence (AI) technologies and the identification of priority areas for federal involvement in AI standards-related activities. Responses to the RFI are due by May 31, 2019.

The RFI comes in response to President Trump’s Executive Order to Maintain American Leadership in Artificial Intelligence, which among other actions directs NIST to develop a plan to guide the federal government’s engagement with initiatives to develop technical standards for AI technology. This RFI, along with others released by this Administration, reflect a desire to promote AI technologies that enhance America’s interests and strengthen the public’s trust and confidence in AI.

According to the RFI, NIST is seeking input from a variety of stakeholders, including industry, academia, and civil society, with the hopes of understanding more fully the following topics:

  • The current status and plans regarding the availability, use, and development of AI technical standards and tools in support of reliable, robust, and trustworthy systems that use AI technologies;
  • Needs and challenges regarding the existence, availability, use, and development of AI standards and tools; and
  • The current and potential future role of Federal agencies regarding the existence, availability, use, and development of AI technical standards and tools to meet the nation’s needs.

To achieve a better understanding of the points above, NIST identifies 18 specific topics that it considers to be the “major areas” about which it needs more information. NIST categories these topics into three groupings:

  • AI Technical Standards and Related Tools Development: Status and Plan
  • Defining and Achieving U.S. AI Technical Standards Leadership
  • Prioritizing Federal Government Engagement in AI Standardization

NIST will also be gathering information from the public through additional means, including public workshops, and it plans to release the draft Plan for public comment. It has also published a page dedicated to the AI Standards effort.

Visit the Hogan Lovells Artificial Intelligence Topic Center for notable developments and thought leadership on the promises and perils of artificial intelligence.

 

Posted in International/EU privacy

South Africa Data Protection Regulations Expected to Take Effect in 2019

Although South Africa’s first comprehensive piece of data protection legislation, the Protection of Personal Information Act (POPIA), was originally signed into law in November 2013, the substantive provisions of the law have not yet taken legal effect. That is likely to change since South Africa’s data protection authority, the Information Regulator, published the final draft of its POPIA regulations in December 2018.

Although the Information Regulator has not indicated exactly when those regulations will become final, it has indicated that the full implementation of POPIA should follow shortly thereafter. Section 114 of POPIA provides that once the law is fully implemented, its substantive provisions will become enforceable after a one-year transitional period. So, to the extent that the POPIA Regulations are finalized at some point in 2019, its substantive provisions will become enforceable one year later in 2020.

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Posted in Policy & Regulation

CMS proposes changes to new-technology add-on payment amounts and criteria in the inpatient prospective payment system proposed rule for FY 2020

On 23 April 2019 the Centers for Medicare & Medicaid Services (CMS) issued the inpatient prospective payment system (IPPS) and long-term care hospital (LTCH) prospective payment system proposed rule for fiscal year (FY) 2020 (Proposed Rule), to be published in the Federal Register on 3 May 2019.

In addition to the annual updates made to the IPPS and the LTCH each year as part of this Proposed Rule, CMS also proposes or asks for information about a number of changes to the new technology add-on payments (NTAPs) under the IPPS, including:

  • Changes to increase the calculated add-on payment for devices with NTAP designation.
  • A new NTAP pathway for devices that are part of the U.S. Food and Drug Administration’s (FDA) Breakthrough Devices Program.
  • A request for comment on CMS’ approach to reviewing the substantial clinical improvement criterion for NTAP or transitional pass-through payment applications under the IPPS and outpatient prospective payment system (OPPS), respectively.

Read More: CMS proposes changes to new-technology add-on payment amounts and criteria in the inpatient prospective payment system proposed rule for FY 2020

Posted in Internet, Policy & Regulation David Taylor

The European Union adopts a new .EU Regulation

On 19 March 2019, the European Union adopted Regulation (eu) 2019/517 of the European Parliament and of the Council of 19 March 2019 on the implementation and functioning of the .eu top-level domain name and amending and repealing Regulation (EC) No 733/2002 and repealing Commission Regulation (EC) No 874/2004, otherwise known as the .eu Regulation.

Background

As its name indicates, the Regulation repeals its predecessors which were considered no longer adapted to the market, the political and legislative context and the online environment.  With this Regulation the European Union has sought to future-proof the regulatory framework, in light of the fast-changing environment, and to promote the digital single market.

The Regulation also seeks to strengthen collaboration between the Registry, the European Union Intellectual Property Office and other EU agencies in order to combat speculative and abusive domain name registrations and to provide simple administrative procedures for small and medium enterprises.

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Posted in International/EU privacy Patrice NavarroElisabethann Wright

EDPB’s Position on Clinical Trials Creates Friction with Other EU Legislation

Clinical trials in the EU include the collection of sensitive health data from patients. Trial sponsors are obliged to reconcile their respect of regulations governing data protection with regulations governing the conduct of clinical trials. The GDPR¹ could not fully harmonize these rules since this area is already heavily regulated by public health regulations that vary between EU Member States. One of the most disconcerting areas of divergence between EU Member States is the different national positions on whether patient consent is a valid legal ground for processing personal data in clinical trials.

Because clinical trials involve the use of “data concerning health,” controllers must cumulatively respect both the provisions of Article 6 GDPR governing the basis on which data may lawfully be processed and the conditions provided in Article 9 GDPR governing the processing of special categories of personal data, including data concerning health. A basic legal requirement that pharmaceutical and medical device companies conducting clinical trials must always respect when conducting a clinical trial is the obligation to obtain patients’ consent to their participation for clinical trials.

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Posted in Consumer Privacy Mark BrennanJulian Flamant

CCPA Amendments Advance through California Assembly

A number of legislative proposals seeking to amend the California Consumer Privacy Act (CCPA) are moving forward following an April 23 hearing before the California Assembly’s Committee on Privacy and Consumer Protection in which the bills were approved. The bills will now advance to the Assembly’s Appropriations Committee before being voted on by the full Assembly and potentially advancing to the California Senate for consideration.

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Posted in Advertising Anthonia GhalamkarizadehEugene Low

Webinar recording: From homes to stadiums – Brand presence in esports

Last month, our IP Outlook webinar series looked at the emerging opportunities and risks for brand owners exploring opportunities in the esports market: from innovative advertising and marketing activities during tournaments and within games, sponsorship of tournaments or teams, to merchandise and fan items.The recording of the webinar is now available to watch here.

What are esports?

Esports refers to competitive video gaming at a professional level, with competitors playing matches in arenas with huge live and online audiences, accompanied by match commentators. The buzz and spectacle accompanying those matches, as well as their audience reach, easily reach Olympic spheres, and outshine most traditional sports events.

The numbers speak for themselves: esports have generated over US$900 million in revenues in 2018, with revenues expected to grow to US$1.4 billion by 2020. Today, it is lined up to be the next billion dollar industry, reaching broad global audiences and attracting heavy investment and endorsement from major brands across all sectors. Meanwhile, many questions around right ownership and regulatory implications in this dynamic multi-stakeholder industry are still uncharted territory.


In January, we launched our third Global Intellectual Property Outlook, covering esports and many more legal, political and technological trends transforming the field of intellectual property.

You can read the Outlook here.

Posted in Copyright Penny ThorntonAlastair Shaw

DSM Watch: new rules for online transmissions of TV and radio programmes

On 15 April the Agriculture and Fisheries Council formally adopted the Directive on online transmissions of broadcasting organisations and retransmissions of TV and radio programmes (the “Directive”), following the European Parliament’s first-reading adoption on 28 March (which also amended the proposed Regulation to a Directive). Broadly, the Directive aims to facilitate the cross-border transmission, within the EU, of certain radio and TV programmes. Once it has been published in the Official Journal of the EU, Member States will have 24 months to implement. As with the new Copyright Directive, it is not certain whether the UK will be obliged to implement, which will depend how and when the UK leaves the EU.

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