HomeInsightsNeed to Know – 2014.09.29

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General

European Commission establishes group of experts on enforcement of IP rights.

Technology

European Patent Office to launch Patent Prosecution Highway pilot programmes with Canada, Mexico and Singapore in 2015.

Preparatory Committee and EPO Select Committee publish report on progress in implementation of unitary patent package.

European Commission and partners publish report on certification schemes for cloud computing.

Data Protection

Article 29 Data Protection Working Party publishes Opinion on “Internet of Things”.

European Commission publishes “myth busting” factsheet on “right to be forgotten”.

Broadcasting

Ofcom publishes note to broadcasters on placement of split-screen advertising.

Ofcom rules Drivetime’s commercial reference for Paddy Power, which promoted odds that were no longer available, materially misled listeners.

Ofcom finds verbal and visual references to products and services which appeared to have been paid for by programmes broadcast on Information TV and Showcase channels in breach of product placement rules.

Ofcom publishes Digital Radio Report for 2014.

Gambling & Betting

Gambling Commission publishes advice note on anti-money laundering and suspicious activity reporting requirements for remote gambling.

HMRC publishes guidance on changes to gaming taxes under Finance Act 2014.

Computer Games

Department for Business, Innovation and Skills announces creation of Next Gen Skills Academy.

Advertising

Committee of Advertising Practice publishes updated guidance on copycat websites.

CAP publishes new guidance on the placement of ads in video-on-demand services.

General

European Commission establishes group of experts on enforcement of IP rights.

According to the Commission Decision, the expert group will be tasked with establishing cooperation between Member States’ authorities and the Commission on matters relating to the enforcement of IP rights.  It will also be required to advise and assist the Commission in the preparation and implementation of policy initiatives relating to the enforcement of IP rights, and to monitor the development of policies and emerging issues within and, where necessary, outside the EU.

Members of the Group will be Member States’ authorities responsible for IP policy and, in particular, the enforcement of IP rights.  To read the Commission Decision in full, click here.

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Technology

European Patent Office to launch Patent Prosecution Highway pilot programmes with Canada, Mexico and Singapore in 2015.

The EPO says that, in an effort to boost innovation and trade, it has signed PPH pilot programmes with the patent offices of Canada, Mexico and Singapore to launch accelerated treatment of patent applications, starting in January 2015.

The pilot programmes will leverage fast track patent examination procedures in order to enable innovators from these regions to obtain patents faster and more efficiently.

Under the programme, patent applicants whose claims have been found to be patentable by either the EPO or these offices may ask for accelerated processing of their corresponding applications that are pending before the other office.  The offices also agreed to refer to and share already existing work results as much as possible in such cases.  This is expected to speed up the process and reduce costs for applicants.

EPO President Benoît Battistelli said: “These agreements promote our joint efforts to increase the use of patents and improve conditions for innovation.  Through this agreement European companies will strongly benefit from simplified access to patent protection in these three dynamic regions.  This also means that patent applicants from Europe will now benefit from similar conditions in these markets as their counterparts from US or Japan.  At the same time, for Canadian, Mexican and Singaporean innovators, the agreement opens an efficient route to high-quality patent protection in Europe“.  To read the EPO’s press release in full, click here.

Preparatory Committee and EPO Select Committee publish report on progress in implementation of unitary patent package.

The report, which sets out the latest state of play in relation to implementation of both the unitary patent and the Unified Patent Court, has been published in the Public Register of the Council of the European Union.

The key items of progress are:

  • the adoption in principle of draft Rules relating to the unitary patent (with the exception of some technical aspects that require further discussion);
  • continued work on the level of renewal fees;
  • machine translations from and into English are now available for all official languages of the EU;
  • agreement on the method for collecting statistical data on the volume of patent litigation;
  • approval of a list of suitable judges for the UPC and discussions on their training;
  • discussions on the rules for Legal Aid;
  • good progress on the IT systems to be used in the UPC;
  • discussions on transitional arrangements; and
  • establishment of an expert panel to advise the Chairman and working group coordinators on developing strategies for the UPC.

Work on the patent package is on target to be completed before the end of 2015.  However, the Committees say that they will work closely “to ensure that the European Patent package is delivered in the most timely and efficient way, minimising any uncertainty for business wherever possible“.  To read the report in full, click here.

European Commission and partners publish report on certification schemes for cloud computing.

The report examines existing certification schemes relevant to cloud computing, focusing on the benefits and challenges of such schemes as well as the identification of possible supporting actions and next step recommendations regarding the implementation of certification for the European Cloud Computing Strategy.

The report is based on research of the state of the art technology in cloud certification.  It examines how cloud certification schemes could enhance trust and transparency in the cloud, which elements of cloud computing could be considered for certification, challenges still affecting existing cloud certification schemes and the role of the public sector. The key findings from the research have been used to develop seven recommendations detailing possible intervention by the European Union with regards to cloud certification.  For a link to the report, click here.

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Data Protection

Article 29 Data Protection Working Party publishes Opinion on “Internet of Things”.

The Working Party’s Opinion concentrates on the privacy and data protection challenges relating to “smart things”.  It also addresses security issues and practical measures that data controllers must adopt.

The Opinion focuses on recent developments of the IoT, such as Quantified Self (e.g. devices warn by individuals to track health issues, such as pulse, weight, blood pressure, etc.), Wearable Computing (e.g. clothes, watches, etc.) and Home Automation (e.g. control of lighting, heating, and appliances in the home).  The Opinion sets out a comprehensive set of practical recommendations that companies involved in the development of the IoT, including device manufacturers, application developers, social platforms, data recipients, data platforms and standardisation bodies, should consider.  The Opinion also underlines the competitive advantage that those involved in the development of the IoT will have if they: i) allow users to remain in complete control of the sharing of their data; and ii) as far as possible, rely on gaining users’ consent.

The Working Party says that it intends to contribute to the uniform application of the EU legal framework to help data controllers comply with their obligations under EU law and to contribute to the development of the IoT in full conformity with data protection principles.  To access the Opinion in full, click here.

European Commission publishes “myth busting” factsheet on “right to be forgotten”.

The Commission notes that the “landmark” ruling of the Court of Justice of the European Union in the Google Spain case (Case C-131/12 Google Spain SL v Agencia Española de Protección de Datos) acknowledged that “under existing European data protection legislation, EU citizens have the right to request internet search engines such as Google, to remove search results directly related to them“.

The Commission also notes that the ruling sparked a “lively and timely debate on the rights and wrongs of the so-called right to be forgotten“.  However, it says, it is “important to make sure the discussion is based on facts” and that a “sober” reading of the judgment shows that “the concerns that have emerged in this debate are exaggerated or simply unfounded“.  Accordingly, it has published what it calls a “myth busting” factsheet on the case, outlining the myths that appear to have developed in the debate, countered with the facts that were contained in the judgment.  The myths and counter facts, as the Commission understands the judgment, are as follows:

  • the judgment does nothing for citizens” – in fact, the judgment is about enabling citizens to be in control of their personal data;
  • the judgment entails the deletion of content – in fact, the judgment only concerns the right to be forgotten in search engine results involving a person’s name.  The content remains unaffected in its original location on the internet and can still be found based on a search other than a search of the person’s name;
  • the judgment contradicts freedom of expression – in fact, the CJEU found that the right to personal data protection, of which the right to be forgotten is a part, is not absolute and must be balanced against other fundamental rights, such as freedom of expression, which is not an absolute right either.  The judgment limits the right to be forgotten, recognising that there may be a public interest in the links remaining online.  The judgment says that the right to be forgotten only applies where the information is inaccurate, inadequate, irrelevant or excessive for the purposes of data processing.  Therefore the search engine must assess requests on a case-by-case basis;
  • the judgment allows for censorship” – in fact, the right to be forgotten does not allow the government to decide what can and cannot be online.  It is a right for citizens to defend their interests as they see fit and independent authorities will oversee the assessment carried out by the search engine operators;
  • the judgment will change the way the internet works” – in fact, the internet will remain an important source of information as content will remain in the same location and be accessible through search engines.  The way search engines function will also remain the same, since they already filter out some links from search results; and
  • the judgment renders the data protection reforms redundant” – in fact, the reforms contain an explicit right to be forgotten.  They establish a number of new rights for citizens, such as the right to transfer personal data from one service provider to another and the right to be informed when the security of a person’s personal data is breached.

For a link to the factsheet, click here.

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Broadcasting

Ofcom publishes note to broadcasters on placement of split-screen advertising.

Split-screen advertising involves transmitting editorial content and advertising content simultaneously, with each occupying a distinct part of the screen.  Like traditional spot advertising, it is subject to the Code on the Scheduling of Television Advertising (COSTA).  Licensees must therefore ensure that: i) it is included when calculating the amount of advertising shown (Rule 4); ii) it remains distinct from editorial (Rule 11); and iii) it does not prejudice the integrity of programming (Rule 12).

In particular, Ofcom reminds broadcasters that, to ensure that the integrity of a programme is maintained, they must have regard to (amongst other things) the “nature” (i.e. genre) of the programme during which split-screen advertising is scheduled.  While it is not possible to set out a prescriptive list of the other factors that must be considered, Ofcom says that these may include the need to maintain viewer confidence that a programme is impartial and free from commercial influence (such as in the context of the news), the need to treat editorial content with appropriate sensitivity or to enable the programme to convey its messages without undue distraction (for example, where the programme focuses on a national tragedy or emergency), and the need to protect particular sectors of the audience (e.g. children) from excessive exposure to commercial messages.  To read Ofcom’s Note to Broadcasters on COSTA rules and split-screen advertising, published in Issue 262 of the Broadcast Bulletin (22 September 2014), click here.

Ofcom rules Drivetime’s commercial reference for Paddy Power, which promoted odds that were no longer available, materially misled listeners.

A World Cup broadcast in Talksport’s Drivetime featured an interview between two presenters and a representative of Paddy Power during which a commercial reference for Paddy Power offered new customers who opened an account the opportunity to place a bet of up to £10 on England winning the World Cup at odds of 100 to 1.

Ofcom investigated and found that Talksport had failed to obtain script clearance prior to broadcast of a betting offer described in a commercial reference, as required by rule 17.1 of the BCAP Code: “radio broadcasters must ensure that advertisements for gambling are centrally cleared“.  The commercial reference was therefore also in breach of rule 10.8 of the Broadcasting Code, which states that “commercial references that require confirmation or substantiation prior to broadcast must be cleared for broadcast in the same way as advertisements“.

Ofcom noted Talksport’s submission that the broadcast of a betting offer that had no longer been available was “a genuine error on the part of the Paddy Power representative“.  However, because licensees, not third parties, are responsible for ensuring Code compliance and because the odds of 100 to 1 were promoted by Paddy Power only after a Drivetime presenter had queried their availability by saying: “Have you still got the, that 100 to 1 England possible?“, as part of the commercial reference, Ofcom found that listeners would be materially misled.  As such, the broadcast breached rule 10.7 of the Broadcasting Code: “commercial references in programming must comply with the advertising content and scheduling rules that apply to radio broadcasting” and BCAP Code rule 3.1: “advertisements must not materially mislead or be likely to do so“.  To read Ofcom’s adjudication on Drivetime (Talksport), published in Issue 262 of the Broadcast Bulletin (22 September 2014), click here.

Ofcom finds verbal and visual references to products and services which appeared to have been paid for by programmes broadcast on Information TV and Showcase channels in breach of product placement rules.

During a monitoring exercise, Ofcom spotted that four programmes under the titles Tobacco Kills…Give It Up and Golf in Cornwall (Information TV) and How to…Plan for your retirement (Showcase) contained significant verbal and visual references to a range of companies and their associated products or services.  For example, in the case of Tobacco Kills…Give It Up, the presenter said “The next section of the programme is a sponsored editorial from electronic cigarette innovators, OK Smokey“.  This was followed by content about the OK Smokey electronic cigarette, which included several positive claims about the product and its safety and efficacy. 

Ofcom investigated and found that, because the sponsored programmes contained references to the sponsors’ products, services and trade marks, product placement rules applied.  Ofcom noted that the promoted companies marketed their products and services (electronic cigarettes, holiday and leisure activities) in competition with other entities and that they had each paid the producers of the programmes to include the material in the programmes.  Ofcom also noted that, although the references featured in “consumer advice programmes”, the fact that content may be “informational” does not necessarily preclude it from also being promotional in nature. 

Ofcom found in each case that the references were clearly promotional statements and therefore in breach of Broadcasting Code rule 9.9.  Ofcom found Tobacco Kills…Give It Up in breach of rule 9.13, which explicitly prohibits the product placement of electronic cigarettes.  Ofcom considered that the narrative of the programmes had been constructed for the purpose of promoting the products and services and lacked sufficient editorial justification.  As such, the programmes were in breach of rule 9.10.  Finally, because the companies’ logos were not broadcast at any of the required points, i.e. after commercial breaks, rendering the audience unaware that the programmes contained references to companies and products that were included as a result of a commercial arrangement, Ofcom found the programmes in breach of Broadcasting Code rule 9.14.  To read Ofcom’s adjudication on Tobacco Kills…Give It Up and Golf in Cornwall (Information TV) and How to…Plan for your retirement (Showcase) published in Issue 262 of the Broadcast Bulletin (22 September 2014) click here.

Ofcom publishes Digital Radio Report for 2014.

The annual report covers availability, take-up, listening patterns and attitudes towards digital radio.

The report, which was requested by the Government in 2010 as part of the Digital Radio Action Plan, shows that over a third (36.3%) of all hours of radio listened to were on a digital platform in the year to the end of June 2014.  This is an increase of 2.4 % on the previous year, and an increase of 10.4 % since 2011.

The proportion of people who said they owned a digital audio broadcasting (DAB) radio set was 48.5% in the second quarter of 2014 (April to June), up from 45.7% in the previous year.  Ownership varied across the UK, ranging from 58.1% in Cambridgeshire and Peterborough to 26.7% in Northern Ireland.

Around 1.7 million digital radio sets were sold in the year to the end of June 2014, making up over a third (36.2%) of all radio sets sold.  While there has been a drop in sales of digital radio sets (down 9.1%), this reflects an overall decrease in radio set sales (down 11.3%).

The number of new cars in the UK fitted with a digital radio as standard has increased over the last year.  More than half of new cars (54.8%) were supplied with digital radio installed in the second quarter of 2014, compared to 38.3% during the same period of 2013.

The coverage of digital radio has increased, with the BBC’s national DAB multiplex covering 95% of homes and the national commercial digital multiplex covering 90%.  Local DAB multiplexes are estimated to cover 73% of households.  For a link to the full report, click here.

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Gambling & Betting

Gambling Commission publishes advice note on anti-money laundering and suspicious activity reporting requirements for remote gambling.

The advice note provides information on suspicious activity reporting requirements, particularly where the licensed operator is based in a foreign jurisdiction, following the implementation of the Gambling (Licensing and Advertising) Act 2014.

The Gambling Commission says that the note is intended to assist remote operators in determining to which body or Financial Intelligence Unit they should report known or suspected money laundering activities and the circumstances in which appropriate consent should be sought to proceed with customer transactions that may result in money laundering offences.

In summary, remote operators licensed by the Commission are required to:

  • report suspicious activity to the Financial Intelligence Unit in the country in which the remote gambling equipment is located, but only if that Unit is in a member of the Egmont group and the country has not excluded or prohibited remote gambling;
  • in all other cases, report suspicious activity to the National Crime Agency;
  • provide the Commission with the NCA or, where available, the relevant Financial Intelligence Unit unique reference number of the suspicious activity report within five days; and
  • seek consent to proceed with a “prohibited act” from the NCA for transactions involving British customers.

The note sets out the legislative framework behind the requirements, contains a list of Egmont group Financial Intelligence Units and a flowchart of suspicious activity reporting.  For a link to the advice note, click here.

HMRC publishes guidance on changes to gaming taxes under Finance Act 2014.

From 1 December 2014, new rules for General Betting Duty, Pool Betting Duty and Remote Gaming Duty are being introduced:

  • GBD applies to fixed odds betting and pool betting on horse and dog racing;
  • PBD applies to pool betting (other than on horse and dog racing) and non fixed odds betting; and
  • RGD applies to remote gaming, for example casino games and bingo, played online.

The new rules will affect:

  • the remote gambling industry who offer remote betting and gaming to UK consumers from outside the UK; and
  • UK land based betting business such as high street betting shops.

The guidance gives a brief overview of the key changes and what affected gaming operators need to do.

Essentially, the basis of how the duties are taxed is being changed from “place of supply” to “place of consumption”.  Therefore, remote gambling operators supplying services to UK customers from outside the UK will, for the first time, become liable to one or more of the taxes.  UK based operators supplying remote gambling to customers who do not usually live in the UK will no longer be liable to GBD, PBD and/or RGD on those transactions.

Remote gambling operators supplying services to UK customers will have to be able to establish which customers are “UK people”.  To this end, the guidance states that, “the definition of a UK person is someone who usually lives in the UK” and that remote gambling operators will therefore have to ask customers whether or not they usually live in the UK and collect and analyse data to verify what they say. 

Those operators that will become liable to any of the gambling taxes as at 1 December 2014 must register with HMRC by 1 December 2014.  An online service for registration will be opening soon, HMRC says, thereby allowing “plenty of time to register before the 1 December 2014 deadline“.

Businesses operating outside the EU (except for certain other countries) will also be required to appoint a representative in the UK approved by HMRC.

Land based gaming sector businesses, such as casinos and bingo halls, will not be affected by the new rules unless they offer remote betting or gaming, and premises based betting and the treatment of spread betting will be unaffected except for some administrative changes.

In preparation for the imminent changes, HMRC advises affected operators to make sure that everyone in the organisation who needs to know about the changes is kept informed and that in-house systems and procedures are reviewed accordingly.  To read the guidance in full, click here.

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Computer Games

Department for Business, Innovation and Skills announces creation of Next Gen Skills Academy.

The UK’s leading visual effects, animation and games employers, including Double Negative, Framestore, Moving Picture Company, Pinewood Studios, Sony Computer Entertainment Europe and Ubisoft Reflections, have joined forces to create a new Next Gen Skills Academy.

The consortium has secured nearly £6.5 million of investment via the UK Commission for Employment and Skills (UKCES), to develop the next generation of talented animators, games designers and visual effects artists.

The Academy will develop and offer new entry level qualifications, higher level apprenticeships, short courses and online learning opportunities, all designed to meet employers’ skills needs.  The initiative is also supported by a range of stakeholders including BFI, Creative England, Creative Skillset, TIGA and Ukie.

The project will benefit from over £2.7 million of Government investment over the next three years.  Employers will provide a further £3.6 million investment in cash and in kind.

Investment will support the development of a new online learning platform to deliver the latest training and skills for these fast moving industries, together with the development of new nationally recognised qualifications.  A regional network of high performing further education colleges will also be established across England, delivering industry-led courses, delivering over 1300 qualifications, including 150 apprenticeship places and over 1000 online training courses.

The announcement follows the launch of the Creative Industries Strategy (Create UK), an industry led strategy launched in July 2014 that will see businesses and Government work together to maintain the UK’s position as a world leader.

Business Secretary Vince Cable said: “The UK’s creative industries are amongst the strongest in the world, worth £71.4 billion per year to the UK economy and supporting more than 1.7m jobs. Visual effects and games in particular are a great British success story. But if we’re to maintain our cutting-edge position, we need to make sure that we have the talent and skills the industry needs. That why the Creative Industries Strategy places skills development as a key priority for the future growth of this important sector“.

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Advertising

Committee of Advertising Practice publishes updated guidance on copycat websites.

CAP has sent letters of guidance to companies that advertise official services or documents on websites that are not the official government channel, commonly known as “copycat” websites.

The letters have been sent following consideration by the Advertising Standards Authority of three cases of copycat websites offering government services.  CAP reminds advertisers that the rulings are enforceable from the date of publication and affected advertisers are expected to take immediate action to ensure that their websites comply.

In summary, the rulings concluded that websites that advertise official services or documents and are not the official government channel will have to make clear to consumers that they are not working on behalf of or affiliated to the Government.  In order to comply, websites should:

  • avoid the use of the term “official” when describing the service, including in the name of the website;
  • not use the crown emblem or logo;
  • avoid website designs that appear similar to the official website at www.gov.uk; and
  • not use “Her Majesty’s”, “HM”, “government”, “gov” or similar claims when describing the service.

 In addition, unless a prominent disclaimer is presented immediately alongside every phrase such as, “Apply here” or “Begin process” and fees charged are prominently displayed on each page, the website is likely to mislead consumers.  A compliant disclaimer would be clearly worded and presented separately from other information to ensure that it is prominent and likely to be read by consumers, CAP says.  It would also contain sufficient information to allow consumers to understand the non-official nature of the service on offer and the additional cost of using that service compared to using the official service directly.

Importantly, CAP emphasises that it will closely monitor websites from 28 October 2014 onwards with a view to taking enforcement action against non-compliant claims from that date.  To read CAP’s press release in full, click here.

CAP publishes new guidance on the placement of ads in video-on-demand services.

The guidance is designed to help regulated on-demand service providers comply with their responsibilities under the CAP Code to ensure that ads are not placed irresponsibly.  As programming can be watched at any time, there is a risk that the placement of ads featuring certain themes might cause harm to children, serious or widespread offence to audiences in general, or be socially irresponsible.

The guidance states that, as a first step, on-demand service providers should have processes in place to identify any potential compliance issues related to the content of advertisements.  More specifically, the guidance suggests that service providers adopt the following techniques:

  • to avoid serious or widespread offence, providers might employ timing restrictions similar to those on linear broadcast TV;
  • providers might seek to match the content of programming with advertising; for instance, having a film trailer with frightening content appearing during a programme with similar themes;
  • to prevent potential harm to children, an advertisement featuring adult themes might be served using a timing restriction to limit exposure to children or served at any time around programming content that is unlikely to appeal to them;
  • for particularly strong themes, such as sexual or violent content, providers might serve advertisements only to users subject to access controls; and
  • providers should be aware that placement approaches and restrictions have their limits and will not be sufficient to mitigate certain issues.  Advertising that is socially irresponsible because it, for instance, encourages people to break the law, is unlikely to be acceptable in any context.  Similarly, an offensive depiction on the basis of race, gender or disability is unlikely to be acceptable.

 To read CAP Help Note Placement of advertising in video-on-demand services: guidance for service providers, click here.

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