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Convergence - Legal Aspects
Regulatory Framework
dr. Patrick Van Eecke
Partner, DLA Piper, Brussels
Professor University Antwerp
2
Agenda
At stake
Swiftly moving to a converging world
Legal framework not at pace with technological developments
EU response
Digital agenda
3
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
4
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
6
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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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
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