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

ID.ENTITY

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).


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


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.


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


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


INTRODUCTION

1 What digitization

means for copyright

2 What digitization

means for trademarks

3 What digitization

means for cybersecurity

WHAT IS NEXT ?

INTRODUCTION


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

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


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



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



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



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.


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.


b) Continuing growth of cybersquatting cases



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.


3. WHAT DIGITIZATION MEANS FOR CYBERSECURITY


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



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.

!



c) BYOD issue



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



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


WHAT IS NEXT ?


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.


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 ?


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


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.

THANK YOU

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