Brussels IP and Tech Update – April 2022
In this edition of our IP and Tech Update, we bring you news on the most relevant ongoing regulatory initiatives: the Data Act, the Digital Markets Act, the Digital Services Act, the regulation on machinery products and the potential regulation for the compulsory licensing of patents. We also touch on Privacy Shield 2.0 and the Court of Justice’s recent judgment on the “private copying” exception. Finally, we look into the increased risk of cyber threats and the supervisory authorities’ focus on the public sector’s use of cloud-based services.
Ukraine Crisis – Heightened Cyber Threat – Be Prepared
In response to the heightened geo-political tensions resulting from Russia’s invasion of Ukraine and the package of economic sanctions imposed by the West, the risk of cyber-attacks by Russia and its proxies is high. Organisations based in countries that have imposed sanctions and are supporting the defence of Ukraine are at heightened risk. In this blogpost, you will find information that should help to reinforce your company’s defences and reduce the impact of a cyber event.
EU Regulatory Data Protection: first appraisal of the European Commission’s proposal for a ‘Data Act’
The European Commission presented the “Regulation on harmonised rules on fair access to and use of data” better known as the Data Act. After the adoption of the Digital Governance Act at the end of 2021, this proposal seeks to introduce rules regarding data sharing, access to and reuse of data, contractual terms for data sharing and use, compensation mechanisms, emergency access to data, switching between data processing services, and facilitating data portability. Read more about the Data Act’s scope, key provisions and implications here.
Provisional political agreement on the Digital Markets Act (DMA)
On 25 March 2022, the Council and the European Parliament reached a provisional political agreement on the DMA. The DMA imposes several obligations on platforms that qualify as “gatekeeper” (ie annual turnover of at least EUR7.5 billion within the EU or a market valuation of at least EUR75 billion, and at least 45 million monthly end users and 10,000 business users established in the EU). We will publish an in-depth analysis of the DMA as soon as the final text becomes available. Please note that the Council and the European Parliament are expected to reach an agreement soon on the Digital Services Act (DSA), which targets a broader group of platforms.
Potential EU regulation for the compulsory licensing of patents to be studied by the European Commission
In the wake of the COVID-19 pandemic, the European Commission recently announced its intention to launch a call for evidence and public consultation on a potential new EU regulation concerning the compulsory licensing of patents. The European Commission aims to adopt the proposal in Q3 of 2022. We’ll keep you posted.
EU and US announce ‘agreement in principle’ on new data transfer framework
As mentioned in our blogpost, we have little information about the substance of the agreement, and no draft legal text has been released (or, to our knowledge, prepared). Rather, the announcement is an indication that the parties have found common ground on the outline of a deal. The legal detail is still to be ironed out. We will update you as soon as more information becomes available.
How will the Unified Patent Court (UPC) decide your case?
The final preparations to establish the Unified Patent Court are now underway. Although it will take a few more months before the UPC becomes operative, patent owners should start preparing themselves now for the launch of this new court with its own procedural rules, no body of case law and judges from a range of countries and legal backgrounds. Don’t miss out and find out more about some of the hot topics which will most likely end up on the plate of the UPC, such as the FRAND defence and the doctrine of equivalents here.
Launch of coordinated enforcement on use of cloud by the public sector
Following the EDPB’s decision to set up a Coordinated Enforcement Framework (CEF), 22 supervisory authorities across the EEA will launch investigations into the use of cloud-based services by the public sector. Through coordinated guidance and action, the Supervisory Authorities aim to foster best practices and thereby ensure the adequate protection of personal data. The Supervisory Authorities will in particular explore public bodies’ challenges with GDPR compliance when using cloud-based services, including the process and safeguards implemented when acquiring cloud services, challenges related to international transfers, and provisions governing the controller-processor relationship. Read more about the CEF-initiative here.
Exploring the metaverse: What laws will apply
Virtual interactions have become an increasingly important part of life, which, in the wake of the COVID-19 pandemic, resulted in the creation of the metaverse with major companies announcing metaverse initiatives. Like any new foundational technology, the metaverse remains confusing and unknown to many. Some further insights into the metaverse, its potential uses and legal implications are discussed here.
‘Private copying’ exception applies to storage in the cloud
One of the exceptions to the prohibition to copy copyrighted work is the “private copying” exception. In its judgment of 24 March 2022 in the Austro-Mechana case, the Court of Justice held that this exception also applies to copies of works on a server in a storage space made available to a user by the provider of a cloud computing service.
Belgian DPA decisions on IAB Transparency and Consent Framework
On 2 February 2022, the Belgian DPA decided that IAB’s Transparency and Consent Framework infringes GDPR. IAB developed the framework to ensure GDPR compliance of data processing operations taking place in particular in the context of the OpenRTB protocol for the auctioning of online advertising space using Real-Time Bidding (RTB). The Belgian DPA ordered IAB to pay an administrative fine of EUR250,000. Read the key takeaways from this decision for companies engaging in such activities.
Managing technology contracts to deliver good outcomes
This blogpost discusses the importance of user-friendly contracts, managing communications effectively, the contract change process and the tools provided in the contract. It complements the second episode in our six-part podcast series “Navigating Technology Disputes: Get IT Right!”
New Regulation on machinery products and the digital transition: Obligations for manufacturers, distributors, and importers
Within the framework of the digital transition, the European Commission issued a proposal for a “Regulation on machinery products” which is intended to replace the current “Machinery Directive” (Directive 2006/42/EC). Read more about the new obligations that will be imposed by the Machinery Regulation on manufacturers, distributors and importers, and about its interplay with the proposed Regulation on Artificial Intelligence.
Valuable resources
DLA Piper Data Protection Laws of the World
This 11th edition provides an overview of key privacy and data protection laws across over 100 different jurisdictions, updated for 2022. New jurisdictions include Sri Lanka, and Abu Dhabi Global Market Free Zone. Find out more here.
