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Convergence legal aspects- regulatory framework - patrick van eecke


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Convergence legal aspects- regulatory framework - patrick van eecke

  1. 1. Convergence - Legal Aspects Regulatory Framework dr. Patrick Van Eecke Partner, DLA Piper, Brussels Professor University Antwerp
  2. 2. Agenda  At stake  Swiftly moving to a converging world  Legal framework not at pace with technological developments  EU response  Digital agenda 2
  3. 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 3
  4. 4. Team  International Study team Patrick Mina Joao Maarten Daniel Van Eecke Zoulovits Traça Truyens Nepelski  Global Advisory Board Makoto Lawrence Ian Ibusuki Lessig Walden 4
  5. 5. Current EU legal framework
  6. 6. Current EU legal framework © DLA Piper 6
  7. 7. Ten ICT Trends Our life in 2020
  8. 8. Trend 1: Full accessibility
  9. 9. Full accessibility  100 mb optical fibre  Wifi anywere (also in bus, train and plane)  Real time web  Cfr Tokyo, cfr Singapore 9
  10. 10. Full accessibility  Allows HD real time video streaming, distance surgery, … 10
  11. 11. 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 11
  12. 12. Real time web  Government to citizen real time crisis communication combined with location based services  Microsoft Vine after Katrina Hurricane 12
  13. 13. Full accessibility: legal challenges  Clean Internet  Net neutrality  Digital divide  Liability due to on-line naivety  Security & cybercrime 13
  14. 14. Trend 2: Ubiquitous Computing
  15. 15. Ubiquitous computing  Internet of things  Use of barcodes, RFID, NFC 15
  16. 16. RFID 16
  17. 17. Internet based Intervention in Cardioverter-Defibrillator 17
  18. 18. 18
  19. 19. uComputing: Legal challenges  Data protection  Liability  Security & cybercrime 19
  20. 20. Trend 3: new intermediaries
  21. 21. 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, … 21
  22. 22. New intermediaries: legal challenges  Liability limitations  Applicable law  Co-operation duties 22
  23. 23. Trend 4: Cloud computing
  24. 24. 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? 24
  25. 25. Cloud computing  Aggregation of data: combining structured/non structured data  Cfr Reuters (Open Calais)  Cfr Google snippets 25
  26. 26. CC: data aggregation  Example of extensive data aggregation 26
  27. 27. Cloud computing: legal challenges  Liability  Data protection  Applicable law  Compliance (e.g. archiving outside EU)  Data portability  Copyright 27
  28. 28. Trend 5: Digital natives
  29. 29. 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 29
  30. 30. 30
  31. 31. 31
  32. 32. 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, 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. 32
  33. 33. 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 33
  34. 34. The Digital Native  Other legal reference model  Geographical link not relevant  Alternative identity management  Alternative dispute resolution mechanisms  Own codes of behavior 34
  35. 35. Digital natives: legal challenges  New legal paradigms  Lack of public support for legal initiatives taken by digital immigrants 35
  36. 36. Trend 6: i2i
  37. 37. i2i  Individual to individual  Cutting out the middle man  eBay, Zopa, P2P, Second Life 37
  38. 38. i2i: legal challenges  Applicable law  Consumer protection  Enforceability 38
  39. 39. Trend 7: Consumerisation
  40. 40. 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 40
  41. 41. Legal challenges  Electronic contracting  Electronic archiving  Liability employer - employee 41
  42. 42. Trend 8: Community driven
  43. 43. Community driven  Social networks  Trust model 43
  44. 44. Legal challenges  Alternative dispute resolution schemes  Alternative reputation schemes  Alternative identification schemes  Alternative payment schemes  Democratic deficit? 44
  45. 45. Trend 9: Focus on content
  46. 46. Focus on content  Real time high quality content  User generated content  Combination of content  From content to product 46
  47. 47. Real time high quality content 47
  48. 48. User generated content 48
  49. 49. Content combination 49
  50. 50. From content to product 50
  51. 51. 3D printing 51
  52. 52. 3D printing 52
  53. 53. 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. 53
  54. 54. 3D printing 54
  55. 55. Content: legal challenges  Copyright  Trademarks  Patents  Industrial design rights  Trade secrets 55
  56. 56. Trend 10: off line and online convergence
  57. 57. 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 57
  58. 58. 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, … 58
  59. 59. Augmented reality 59
  60. 60. Surface computing  Multi-touch, multi-user interface, object recognition and gestural interaction  Microsoft Surface, Apple tablet PC 60
  61. 61. Merging social networks 61
  62. 62. 62
  63. 63. 63
  64. 64. Legal challenges  Dual legal framework  Conflict of laws 64
  65. 65. Trend 11: Measureability
  66. 66. Measureability  Everything is measureable  Personalised content, behavioral advertising  Allows new business models (e.g. Google Adwords, Freemium models, … )  Phorm, Bluelithium 66
  67. 67. Legal challenges  Data protection  Copyright 67
  68. 68. Challenges for Europe
  69. 69. Legal challenges for Europe From i2010 to i2020 The future of  data protection in the information society  copyright  liability  money  contracting  dispute resolution  consumer protection … 69
  70. 70. Recommendations to EU
  71. 71. Recommendations  100 recommendations made towards the Commission  Some examples 71
  72. 72. 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. 72
  73. 73. 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. 73
  74. 74. 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. 74
  75. 75. 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. 75
  76. 76. Next steps?
  77. 77. 77
  78. 78. 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 78
  79. 79. 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. 79
  80. 80. 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 80
  81. 81. 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) 81
  82. 82. 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) 82
  83. 83. 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) 83
  84. 84. 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) 84
  85. 85. 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) 85
  86. 86. Conclusion
  87. 87. More info? Patrick Van Eecke