On 29 November 2017, the Court of Justice of the European Union (ECJ) confirmed that, under the Copyright Directive (the Directive), the making available of copies of television programmes saved in the cloud must be authorised by the holder of the copyright or related rights. Continue Reading ECJ confirms rights holders can stop cloud-based television recording services
On 13 September 2017, the Commission issued a proposal for a Regulation to strengthen the role of the EU Agency for Network and Information Security (ENISA) by:
- granting it a permanent mandate;
- clarifying its role as the information hub of the EU for cybersecurity; and
- tasking it with the responsibility of proactively contributing to policy in the area of network information and security.
The proposal also introduces EU-wide cybersecurity certification schemes for ICT products and services, which will be prepared by ENISA. This aims to address current market fragmentation and provide a comprehensive set of cybersecurity rules, technical requirements, standards and procedures. Continue Reading EU Commission proposes stronger mandate for ENISA and EU-wide cybersecurity certification
In a judgment delivered on 14 June 2017, the Court of Justice of the European Union (CJEU) decided that making available a online sharing platform falls within the concept of “communication to the public” for the purposes of copyright law, and can therefore amount to infringement of copyright in protected works which are shared via that platform. This decision bolsters the ability of copyright owners to pursue the operators of such platforms, and to obtain relief against intermediaries (in particular ISPs) forcing them to block their users from accessing such platforms.
The immediate practical consequence of the CJEU’s decision is that the national courts are entitled to grant blocking injunctions against ISPs in order to block users from accessing TPB. This is plainly a positive outcome from the point of view of copyright holders, giving them stronger rights to restrict unauthorised distribution of their protected works. The generally pro-rightsholder approach of the CJEU in this case mirrors the recent efforts of the English courts to modernise its remedies in order to secure adequate protection against infringing activities, as reported in a previous blog post.
On May 23, 2017, the United States Federal Communications Commission (FCC) released the text of a Notice of Proposed Rule Making (NPRM) that solicits public comment on what FCC Chairman Ajit Pai calls a plan for “Restoring Internet Freedom.” The NPRM contemplates reversing the 2015 FCC Open Internet Order that classified both fixed and mobile broadband internet access services as telecommunications services and subjected them to some of the common carrier regulations found in Title II of the Communications Act. The 2015 Order also adopted no-blocking, no-throttling, and no-paid-prioritization rules, as well as a general internet conduct standard. Continue Reading American Federal Communication Commission Publishes NPRM Geared Towards Reversing Open Internet Order
On 10 May 2017, the European Commission published its mid-term review of the implementation of Europe’s Digital Single Market strategy. Launched in 2015, the ambitious strategy covered 16 actions under the three pillars: (1) improving access to digital goods and services for consumers and businesses across Europe; (2) creating the right conditions and a level playing field for digital networks and innovative services to flourish; and (3) maximising the growth potential of the digital economy. Despite a lot of activity, the Commission was only able to highlight one actual delivered improvement in its review – the abolition of retail roaming charges – although it looks forward to the imminent implementation of cross-border content portability in early 2018 and the expected approval of a proposal to address unjustified geo-blocking.
On 27 April 2017, the UK’s new Digital Economy Act came into force. Following the calling of a snap General Election for 8 June, it was brought into force during the final parliamentary wash-up. Whilst some proposals were withdrawn or watered down, a number of important provisions, notably reform of the UK’s electronic communications code which governs the relationship between telecoms operators and landowners, were brought into force without significant amendment.
In January 2017, the European Commission published the proposed text of a new draft e-Privacy Regulation (ePR) as part of its ongoing drive to advance one of its key initiatives, the Digital Single Market.
Whilst the impending introduction of the GDPR has been dominating headlines for the past months, the ePR has somewhat gone under the radar. We set out the key points to look out for with regard to the ePR and who it is likely to apply to.
In 2015, the European Commission published a study (written by IDC) which provides an overview of Europe’s IoT digital ecosystem, its current status and anticipates a suggested vision of the same ecosystem in 2020. That study found:
The IoT (Internet of Things) is a pervasive innovative technology building on the universal connectivity of things and people, now moving in Europe from the pioneer phase to widespread adoption. In combination with cloud computing and Big Data the IoT is opening the new age of the hyper-connected society and acting as a powerful driver of business innovation, but also facing equally strong barriers in terms of security risks, concerns about privacy protection, and resistance to organizational change.”
On 30 March 2017, Ofcom, the UK’s communications regulator, published its annual plan for financial year 2017/18. It also published its budget and work programme for the year. The changes identified by Ofcom in relation to its responsibilities, markets and technology and the legislative framework under which it operates provide a great snapshot of current industry trends and issues.
Taking these in turn:
On 30 March 2017, the UK’s Department for exiting the European Union published a white paper outlining its proposals for a Great Repeal Bill (GRB). Whilst superficially, this appears to bring clarity to the legal position after Brexit, on closer examination the GRB proposal over-simplifies the position and glosses over the very significant legislative (and consequential business) problems that will arise from the UK’s departure from the EU in the absence of a comprehensive and detailed free trade agreement between the UK and EU to enable many of the existing business arrangements to continue. Whilst much of the press commentary has focused on the impact of Brexit on the financial services sector, the same issue, disruption of existing business models as a result of leaving the single market, arises in almost every other sector of the economy, and certainly in the telecoms, media and technology sectors.