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Transcript of Driving IP through Digital Peril: Uncovering a Practical Legal Perspective - Daphnée...
Uncovering a practical legal perspective
Driving IP through Digital Peril
11.21.2017
Daphnée Labourdique-Bouzidi
Senior Legal Counsel
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 3
THE 2nd LARGEST BANKING GROUP IN FRANCE (1)
Boasting a portfolio of strong brands
(1) Market share: 21.5% in customer savings deposits and 20.7% in customer loans (source:
Banque de France Q4-2016 – all categories of non-financial
customers).
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 4
A COOPERATIVE BANKING AND INSURANCE GROUP
at the service of it cooperative
shareholders and customers
ORGANIZATION CHART OF GROUPE BPCE AT DECEMBER 31, 2016
TWO COOPERATIVE
RETAIL BANKING NETWORKS
SHAREHOLDERS OF BPCE SA
BPCE SA AT THE SERVICE OF THE GROUPE
SUBSIDIARIES
15 Banque Populaire banks
16 Caisses d’Epargne
BPCE SA is responsible for the corporate strategy, coordination and organization of the Group as a whole
• Natixis
• Crédit Foncier
• Banque Palatine
• BPCE International
• etc.
BPCE SA
9 million cooperative shareholders
FREE FLOAT
100%
50%
100% 71%
29% * via local savings companies (LSC)
100%*
50%
including CASDEN Banque Populaire and Crédit Coopératif
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 5
BIO
Daphnée serves as Senior legal Counsel for Groupe BPCE. She is based at the Groupe’s central institution in Paris where she manages all the IP, digital and marketing/communication legal issues.
She is used to work in multidisciplinary team (digital task force, marketing/ Communication, procurement) and developed strong skills in securing IP rights in the digital space.
Prior to joining Groupe BPCE, Daphnée worked as associate attorney for de Gaulle Fleurance et associés law firm in Paris. Daphnée started her carreer at the legal department of Microsoft France.
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 6
A STRONG FOUNDATION FOR OUR DIGITAL AMBITION
9 million application downloads
75% of customers have signed up for online banking services
100,000 documents signed electronically every day
INNOVATIVE OFFERINGS
ʘ Tools for managing budgets (budget, account aggregation)
ʘ Affinity-based & collaborative finance
ʘ Payments
ʘ Partnerships
ʘ Acquisitions
1,000 APIs rolled out
SIGNIFICANT FIGURES
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 7
CHANGING THE ORDER OF MAGNITUDE
1 DIGITAL TASKFORCE 4 areas of expertise (user experience, data, technologies, digital transformation) and 50 employees
DIGITAL CHAMPIONS responsible for maintaining links with our entities, are actively involved in the digital projects and in their application at a local level
1 DIGITAL FACTORY 4 platforms (customers, data, employees, partners) to centralize all the digital development resources derived from Groupe BPCE’s different information systems
1 STARTUP PASS designed to simplify relations with the startup companies
1 OPEN DATA PLATFORM with series of data available about the Group
A DEDICATED ORGANIZATION: 89C3
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 8
INTRODUCTION
1 What digitization
means for copyright
2 What digitization
means for trademarks
3 What digitization
means for cybersecurity
WHAT IS NEXT ?
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 10
INTRODUCTION
Digital technologies
> New uses
> New actors
> New business models
= new opportunities for consumers to access copyright-protected content.
« From peer-to-peer to people-people »
> Sharing has becoming a key concept in the economy (AKA the « sharing economy »)
> The preference for use over property
= need for an adaptation
Consequences for IP rigths
> Copyright
> Trademark/ domain names
> cybersecurity
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 12
1. WHAT DIGITIZATION MEANS FOR COPYRIGHT
a) An update on uploading, hosting, sharing protected content
Users are liable if they upload a copyrighted material without the rightholder’s consent.
Still applicable in the digital space.
France example of Hadopi
The « notice and take down » procedure to
remove illegal content
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 13
The rule applying to platforms raises concerns
Platforms providing access to copyrighted material are considered hosting providers
They are liable only under certain circumstances
No liability regarding the
material they store = a kind of
immunity from financial liability
Value gap
Growing feeling : Rightholders do
not benefit from the copyrighted file
sharing value
Example : Youtube Content ID
The Directive Proposal on copyright in the digital single market
- Update copyright rules for the digital age
- Rebalance the relations between the rightholders and the
platforms
Solutions: technical measures + contract adjustment mechanism
• Service providers
•Giving access to large amount of works
• Shall take measures
• To ensure the functioning of agreements conclued with right holders
•Or to prevent the availability on their services works identification by right holders
• Example of measures : content recognition technologies
Article 13
Article
15
• contract adjustment mechanism
1. WHAT DIGITIZATION MEANS FOR COPYRIGHT
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 14
What about Peer-to-Peer platforms ? The recent Pirate Bay decision
CJEU Decision :
Question :
Did the Pirate Bay performed an “ act of communication” to the public since :
» It did not host any infringing content
» It provided a way for users to access such content?
Decision :
The Pirate Bay did no just offered a search feature, it also:
» categorised files,
» deleted faulty trackers,
» filtered out some types of content.
“The operators of the platform play an essential role in making those works available.”
Injunction to ISPs ordering to block access is allowed
1. WHAT DIGITIZATION MEANS FOR COPYRIGHT
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 15
Linking and sharing
Bestwater and Svensson decisions (CJEU 2013 & 2014)
// link sharing on social platforms
it is allowed to link to copyrighted material on third-party websites as long as the
material is freely available and accessible
1. WHAT DIGITIZATION MEANS FOR COPYRIGHT
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 16
New exemption created by the Directive Proposal: for research,
non-commercial purposes
b) Data mining issue
Definition (Directive Proposal on copyright in the Digital Single
Market)
Principle: data mining can only copy copyrighted data with the permission of the
author.
1. WHAT DIGITIZATION MEANS FOR COPYRIGHT
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 18
2. WHAT DIGITIZATION MEANS FOR TRADEMARKS
Google Adwords services
a) New trademarks uses : it is allowed to « purchase » a third party’s trademark as a keyword on Google
European Court of Justice case law
For constituting a trademark infringement, the use of a trademark as « AdWord » must have an adverse effect on the protected functions of the trademark (the « origin function ») :
> It is the case if an advertiser’s ad shown as search result presents an economic link between the advertiser and the trademark owner.
> It is the case if the ad is vague regarding the origin of the goods or services so that a « normally informed and reasonably attentive internet user » is not able to determine whether the advertiser is a third party or the trademark owner.
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 19
b) Continuing growth of cybersquatting cases
2. WHAT DIGITIZATION MEANS FOR TRADEMARKS
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Which strategy to adopt ?
What about registering your own gTLD ?
> 2012 : the first application round opened by ICANN to create and operate a new generic Top-Level Domain (gTLD) registry.
Over 600 companies applied
> The operator of a new gTLD is running a part of Internet infrastructure
this involves a number of significant responsabilities
> A key benefit : increasing security against trademark abuse but the evaluation fee is US$185,000.
2. WHAT DIGITIZATION MEANS FOR TRADEMARKS
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a) A context of continuing growth of cyberattacks exacerbating fears of data breaches and hacking
New platforms vulnerable to potential attacks
> Mobile devices
> Cloud
> IoT technologies
2017 = significant cybersecurity breaches
> WannaCry (200,000 victims in 150 countries)
> Petya
3. WHAT DIGITIZATION MEANS FOR CYBERSECURITY
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Section 2 of the GDPR : organisations must “protect personal data against accidental or unlawful destruction or
accidental loss and to prevent any unlawful forms of processing, in particular any unauthorised disclosure,
dissemination or access, or alteration of personal data”.
organisations will have to inform the Information Commissioner within 72 hours of discovering a data leak or
risk a fine
Firms will have to disclose hacks and security breaches
Liability of data processor for damages + severe financial sanctions (up to €20m or 4 % of global
annual turnover, whichever is greater).
b) Governments around the world are introducing legislation wich will force more companies to disclose data breaches : GDPR in EU
Purpose = make it easier to find out
what data companies hold on you
how your data is handled
what it’s used for.
!
3. WHAT DIGITIZATION MEANS FOR CYBERSECURITY
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c) BYOD issue
3. WHAT DIGITIZATION MEANS FOR CYBERSECURITY
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BYOD is an increasing
trend
Some key advantages to operate a BYOD strategy
But risks about data loss
or leakage
Global market for BYOD was expected to reach $181.39 billion by 2017
It's part of the BYOT, BYOP and BYOPC trend
Cost savings
Productivity gains
Up-to-date technology
Lost or stolen devices
People leaving the company
Lack of anti-virus software
3. WHAT DIGITIZATION MEANS FOR CYBERSECURITY
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 26
How to deal with BYOD? Example of the guidelines of the French data protection authority (CNIL) of 2015 :
Privacy concerns
Need to find a balance between compagnies’ legitimate security concerns and the privacy of their employees.
The security measures must be proportionate to the threats and risks to the IT system.
Personal devices can only be used as an alternative in the professional context
French labor law: employers provide employees with all the means necessary to perform their professional duties.
Data security
The employer is responsible for the security of the company’s personal data.
Including when it is stored on devices that the company does not control but for which the employer has granted permission to access
company’s resources.
How to limit the risks for data security?
> Identify the risks (which equipment, which
applications, which data?)
> Assess the risks in terms of severity and
likelihood
> Determine the measures to be implemented
> Implement a security policy
> Raise user awareness regarding the risks
3. WHAT DIGITIZATION MEANS FOR CYBERSECURITY
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WHAT IS NEXT ?
important implications for copyright law.
>The development of artificial intelligence : many challenges ahead
>An evolution from computer generated works to machine learning
software.
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 29
COPYRIGHT PROTECTION OR NOT?
>Copyright protection condition = originality
>Originality = intervention of a human author (the work is the reflection of the
“author’s own intellectual creation”)
If no human = no copyright
Works could be freely used and reused by anyone.
OPTION 1
Deny copyright protection for works that have been generated by a computer
Problem : what about the incentive for companies to invest in innovation ?
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 30
COPYRIGHT PROTECTION OR NOT?
OPTION 2
Grant copyright protection, but who will be the owner of the rights?
The programmer
of the program?
The user of the
program?
The creators of the
works the AI
machine studied in
order to create its
own works?
The
machine
itself?
The owner of the
program?
> what will happen when AI
systems will be able to modify
their own code?
> related to the big debate on
status and rights of robots
DRIVING IP THROUGH DIGITAL PERIL : Uncovering a practical Legal Perspective 11.21.2017 31
SOME SOLUTIONS
Decide on a case-by-case basis
A new property right (like the sui generis database right)
that would be comparable to but distinct from copyright
A lot of questions about the future of ownership and copyright
protection in creative works.