Convergence - Legal Aspects

Regulatory Framework

dr. Patrick Van Eecke

Partner, DLA Piper, Brussels

Professor University Antwerp

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Agenda

At stake

Swiftly moving to a converging world

Legal framework not at pace with technological developments

EU response

Digital agenda

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European study

Commissioned by the European Commission (DG Information Society)

From May 2008 until December 2009

Holistic approach

1. Identify the ICT trends that will have a future impact

2. Identify the gaps in the current legal framework

3. Provide recommendations for making the European legislation future proof

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Team

Patrick Van Eecke

Joao Traça

Maarten Truyens

Mina Zoulovits

Daniel Nepelski

International Study team

Global Advisory Board

Makoto Ibusuki

Lawrence Lessig

Ian Walden

Current EU legal framework

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Current EU legal framework

© DLA Piper

Ten ICT Trends

Our life in 2020

Trend 1: Full accessibility

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Full accessibility

100 mb optical fibre

Wifi anywere (also in bus, train and plane)

Real time web

Cfr Tokyo, cfr Singapore

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Full accessibility

Allows HD real time video streaming, distance surgery, …

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Real time web

Twitter lead the media in breaking news about US Airways flight 1549 crashing in New York's Hudson river and the Mumbai bombing

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Real time web

Government to citizen real time crisis communication combined with location based services

Microsoft Vine after Katrina Hurricane

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Full accessibility: legal challenges

Clean Internet

Net neutrality

Digital divide

Liability due to on-line naivety

Security & cybercrime

Trend 2: Ubiquitous Computing

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Ubiquitous computing

Internet of things

Use of barcodes, RFID, NFC

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RFID

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Internet based Intervention in Cardioverter-Defibrillator

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uComputing: Legal challenges

Data protection

Liability

Security & cybercrime

Trend 3: new intermediaries

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New intermediaries

Traditional players

internet infrastructure providers

access providers

hosting providers

New players: platforms

eBay, eBid, …

Layar, Mint

Wikipedia

Yahoo, Google

Second Life, Eve

MSN, Facebook, Myspace, Netlog, …

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New intermediaries: legal challenges

Liability limitations

Applicable law

Co-operation duties

Trend 4: Cloud computing

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Cloud computing

From homeserver to cloud computing

Not limited to data, but also applications

IaaS – Infrastructure as a Service

PaaS – Platform as a Service

SaaS – Software as a Service

Biggest CC provider?

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Cloud computing

Aggregation of data: combining structured/non structured data

Cfr Reuters (Open Calais)

Cfr Google snippets

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CC: data aggregation

Example of extensive data aggregation

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Cloud computing: legal challenges

Liability

Data protection

Applicable law

Compliance (e.g. archiving outside EU)

Data portability

Copyright

Trend 5: Digital natives

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Digital natives

I always do more than one thing in parallel, otherwise I would feel like I

am running at partial capacity

You just don’t ask for a phone number, you ask for a MSN contact

I could spend 24 hours a day in front of my PC and not get bored

With Facebook I can be available all the time and always up-to-date with what is going on. It’s important to be part of everything

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The Digital Native

The Internet has become the new way for social networking P16-34 are 25% more likely than P35-49 to use instant messenger, with over 75% of P16-34

currently using at least one service.

About 40% of P16-34 belong to a social network site; this is twice the percentage of P35-49 year olds.

Nearly 40% of P16-34 have met someone face to face after meeting on the Internet.

Yahoo, AOL and MSN Messenger are among the top Internet services in terms of awareness and use by P16-34.

This is followed closely behind by social networking site, Myspace.com with 43% of P16-34 being current users. In comparison, only 16% of P35-49 are using Myspace.

Blogging and twittering is the “voice” of the new generation 71% of P16-34 year olds have participated in a blogging activity.

P16-34 are three times more likely (25%) than P35-49 to manage and/or write their own blog.

While personal and family/friend are the most common types of blogs among the younger group, more than 40% are developing photo and pop culture (music/film) blogs as well. This is different from the older group, who are using blogs to share information and discuss current news and world events.

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The Digital Native

File-sharing One third of P16-34s have participated in peer-to-peer file sharing compared to just 12% of

P35-49.

With the continued advancement of mobile telecoms, mobile video uploads to sites such as YouTube and Grouper will be increasingly commonplace, spreading quickly to more well known social networking sites such as MySpace and Flickr.

Multi-tasking Despite the emergence of new media platforms, consumers continue to bond with television

and other traditional media

85% of heavy Internet users say they participate in other media related activities while online, mostly watching television or listening to music.

Always connected The only time when they aren’t communicating is when they are sleeping

No geographical boundaries You NEVER lose touch with people unless you want to When you change schools you can keep in touch with the same people, through university,

through different jobs, moving location… You decide who makes up your friendship group, not circumstance

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The Digital Native

Other legal reference model

Geographical link not relevant

Alternative identity management

Alternative dispute resolution mechanisms

Own codes of behavior

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Digital natives: legal challenges

New legal paradigms

Lack of public support for legal initiatives taken by digital immigrants

Trend 6: i2i

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i2i

Individual to individual

Cutting out the middle man

eBay, Zopa, P2P, Second Life

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i2i: legal challenges

Applicable law

Consumer protection

Enforceability

Trend 7: Consumerisation

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Consumerisation of IT

Convergence between consumer and corporate tools and devices

WiFi

'smart' mobile phones & personal electronic devices

Blogs and wiki’s

instant messaging & the Internet

even the PC itself

Google Desktop, Skype

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Legal challenges

Electronic contracting

Electronic archiving

Liability employer - employee

Trend 8: Community driven

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Community driven

Social networks

Trust model

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Legal challenges

Alternative dispute resolution schemes

Alternative reputation schemes

Alternative identification schemes

Alternative payment schemes

Democratic deficit?

Trend 9: Focus on content

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Focus on content

Real time high quality content

User generated content

Combination of content

From content to product

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Real time high quality content

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User generated content

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Content combination

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From content to product

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3D printing

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3D printing

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3D printing

Jay Leno has a lot of old cars with a lot of obsolete parts. When he needs to replace these parts, he skips the error-prone machinist and goes to his rapid prototyping 3D printer.

The 3D scanner next to Jay creates a digital model of this flanged nut from Jay’s EcoJet supercar. The nut takes 20 minutes to scan and reverse model and 3 hours to print in plastic.

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3D printing

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Content: legal challenges

Copyright

Trademarks

Patents

Industrial design rights

Trade secrets

Trend 10: off line and online convergence

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Off line & on line convergence

Barriers between off line and on line world fading away

Real time web

Mobile applications

Location based services (augmented reality)

Surface computing

Merging social networks

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Location based services

Augmented reality

Combination of mobile web, camera, compass and GPS

E.g. iPhone, Android, Layar

Step by step tourist guides, real estate, musea, …

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Augmented reality

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Surface computing

Multi-touch, multi-user interface, object recognition and gestural interaction

Microsoft Surface, Apple tablet PC

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Merging social networks

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Legal challenges

Dual legal framework

Conflict of laws

Trend 11: Measureability

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Measureability

Everything is measureable

Personalised content, behavioral advertising

Allows new business models (e.g. Google Adwords, Freemium models, … )

Phorm, Bluelithium

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Legal challenges

Data protection

Copyright

Challenges for Europe

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Legal challenges for Europe

From i2010 to i2020

The future of in the information society data protection

copyright

liability

money

contracting

dispute resolution

consumer protection

…

Recommendations to EU

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Recommendations

100 recommendations made towards the Commission

Some examples

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Examples of recommendations

The definition of "information society services" (as used in the E-commerce Directive) must be decoupled from article 50 the EC Treaty and must include all online activities, whether or not provided for remuneration.

The current EU legal instruments on jurisdiction (Brussels I) and applicable law (Rome I - II) must be modified to take into account online issues. In particular, clear rules must be established on which country's tort laws apply in case of copyright breaches, defamation issues, and unlawful processing of personal data.

Steps must be taken to clarify that the scope of the "coordinated field" in the E-commerce Directive covers any rule that can affect an online service provider, with the single exception of a rule that indiscriminately applies to both the online and the offline environment.

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Examples of recommendations

A "right to forget" should be introduced, allowing citizens to ask a data controller to remove personal data as from a specified period of time (for example, five years), regardless of whether the data controller has reserved the right to keep using the data in the future.

A "right to data portability" should be introduced, allowing citizens to request a copy of the personal data held by the data controller.

The private use exception must be extended, so that it also covers internet publishing activities undertaken by consumers.

The adoption of multi-territorial licensing must be further encouraged in order to increase legal certainty of commercial users and foster the development of legitimate online services.

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Examples of recommendations

A harmonised and detailed notice-and-takedown procedure must be introduced, which balances the rights of all stakeholders.

The scope of the special liability regime must be enlarged and clarified, by replacing the current three-fold structure with a two-fold structure (mere conduit service providers and "third party information processors"). Community-driven platforms, platforms with user generated content and cloud computing services must in particular fall under the special liability regime.

The scope of the new exceptions of the revised E-money Directive (the "limited networks" exception of article 1.4 and the "value added services" exception of article 1.5) must be clarified in order to resolve the legal uncertainty faced by many emerging online payment services.

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Examples of recommendations

Harmonised rules on e-archiving and digital evidence must be adopted.

A "comply or explain" approach (self-regulation) should be adopted, which allows access providers to engage in legitimate bandwidth management practices, but discourages other net neutrality interferences.

Article 13 of the E-privacy Directive must be adapted in order to include new forms of spam and solve issues with the current legal framework.

Etc, etc.

Next steps?

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Digital Agenda

A Digital Agenda for Europe

Commission Communication of 19 May 2010 - COM(2010) 245

part of the Europe 2020 Strategy

Successor of i2010, A European Information Society for growth and employment

European Commission Communication of 1 July 2005, COM(2005) 229 final

part of the Lisbon Agenda

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7 priority areas for action

1. Creating a Digital Single Market

2. Improving the framework conditions for interoperability between ICT products and services

3. Boosting internet trust and security

4. Guaranteeing the provision of much faster internet access

5. Encouraging investment in research and development

6. Enhancing digital literacy, skills and inclusion

7. Applying ICT to address social challenges such as climate change, rising healthcare costs and the ageing population.

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7 obstacles hindering that goal

1. Fragmented digital markets

2. Lack of interoperability

3. Rising cybercrime and risk of low trust in networks

4. Lack of investment in networks

5. Insufficient research and innovation efforts

6. Lack of digital literacy and skills

7. Missed opportunities in addressing societal challenges

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16 key actions for overturning the obstacles

Key Action 1: Simplify copyright clearance, management and crossborder licensing by:

Enhancing the governance, transparency and pan-European licensing for (online) rights management by proposing a framework Directive on collective rights management (2010)

Creating a legal framework to facilitate the digitisation and dissemination of cultural works in Europe by proposing a Directive on orphan works, to conduct a dialogue with stakeholders with a view to further measures on out-of print works, complemented by rights information databases (2010)

Reviewing the Directive on Re-Use of Public Sector Information, notably its scope and principles on charging for access and use. (2012)

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16 key actions

Key Action 2: Ensure the completion of the Single Euro Payment Area (SEPA), eventually by binding legal measures fixing an end date for migration and facilitate the emergence of an interoperable European eInvoicing framework through a Communication on eInvoicing and by establishing a multistakeholder forum (2010)

Key Action 3: Propose a revision of the eSignature Directive with a view to provide a legal framework for cross-border recognition and interoperability of secure eAuthentication systems (2011)

Key Action 4: Review the EU data protection regulatory framework with a view to enhancing individuals' confidence and strengthening their rights (2010)

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16 key actions

Key Action 5: As part of the review of EU standardisation policy, propose legal measures on ICT interoperability to reform the rules on implementation of ICT standards in Europe to allow use of certain ICT fora and consortia standards (2010)

Key Action 6: Present measures aiming at a reinforced and high level Network and Information Security Policy, including legislative initiatives such as a modernised European Network and Information Security Agency (ENISA), and measures allowing faster reactions in the event of cyber attacks, including a CERT for the EU institutions (2010)

Key Action 7: Present measures, including legislative initiatives, to combat cyber attacks against information systems, and related rules on jurisdiction in cyberspace at European and international levels by (2010-2013)

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16 key actions

Key Action 8: Adopt a Broadband Communication that lays out a common framework for actions at EU and Member State to meet the Europe 2020 broadband targets, including:

Reinforce and rationalise, in this framework, the funding of high- speed broadband through EU instruments and explore how to attract capital for broadband investments through credit enhancement (2014)

Propose an ambitious European Spectrum Policy Programme that will create a co-ordinated and strategic spectrum policy at EU level in order increase the efficiency of radio spectrum management and maximise the benefits for consumers and industry (2010)

Issue a Recommendation in 2010 to encourage investment in competitive Next Generation Access networks through clear and effective regulatory measures (2010)

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16 key actions

Other actions relating to

Research and Innovation

Enhancing digital literacy, skills and inclusion

ICT-enabled benefits for EU society

Example:

Propose a Council and Parliament Decision to ensure mutual recognition of e-identification and e-authentication across the EU based on online 'authentication services' to be offered in all Member States (which may use the most appropriate official citizen documents – issued by the public or the private sector) (2012)

Conclusion

More info?

Patrick Van Eecke

patrick.van.eecke@dlapiper.com