NEWSLETTER I INTELLECTUAL PROPERTY, MEDI A AND IT
CONTENTS INTELLECTUAL PROPERTY, MEDIA AND IT NEWSLETTER I 2ND QUARTER 2017
I GUIDELINES OF THE ARTICLE 29 WORKING PARTY ON THE RIGHT TO PORTABILITY OF PERSONAL DATA
III CASE LAW
IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS
INTELLECTUAL PROPERTY, MEDIA AND IT NEWSLETTER
I GUIDELINES OF THE ARTICLE 29 WORKING PARTY ON THE RIGHT TO PORTABILITY OF PERSONAL DATA
The new General Data Protection Regulation ("GDPR") Regulation (EU) 2016/679 , besides reaffirming a number of specific rights of data subjects (access, rectification, erasure and objection), already established in the earlier Directive 95/46/EC, introduced new legal concepts with the aim of strengthening the protection of data subjects, due to their vulnerability in the context of the information society. These concepts include the right to data portability, set out in article 20 of the GDPR.
In this article, it is established that when personal data is processed by automated means (thus excluding data processed on paper) and is based on the consent of the data subject or on compliance with a contract to which the data subject is a party, the data subject has the right to:
i) Receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format; and to
ii) Transmit those data to another controller without hindrance from the controller to which the personal data have been provided or, alternatively, to request that the transmission takes place directly between controllers, where technically feasible.
Given the conditions established in the GDPR, there is no right to data portability when their processing is necessary for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
On 5 April 2017, the Article 29 Working Party an independent European advisory body on data protection and privacy reviewed the guidelines adopted on 13 December 2016 (WP 242) that provide important orientations for the interpretation and application of the new rules of the GDPR with regard to data portability.
The Article 29 Working Party emphasised that this new right will be an important tool to ensure free movement of personal data in the European Union and to promote competition amongst controllers. Indeed, the new rules make it easier for consumers to switch service providers, consequently encouraging the development of new services in the context of the single digital market strategy.
Amongst other aspects of data portability focused on the aforementioned guidelines, the Article 29 Working Party considers that the right to portability covers both data provided knowingly and actively by the data subject (for example, name or age), as well as personal data
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generated when using a service or device (for example, search history, traffic data and location data). In contrast, inferred data or derived data created by the data controller on the basis of the data provided by the data subject are excluded (for example, data obtained by profiling).
According to the Article 29 Working Party, as a good practice, data controllers should start developing the technical means to answer data portability requests, such as download tools and Application Programming Interfaces.
Although, as expressly stated in recital 68 of GDPR, "The data subject's right to transmit or receive personal data concerning him or her should not create an obligation for the controllers to adopt or maintain processing systems which are technically compatible", in order to promote the use of interoperable formats that facilitate data portability, the Article 29 Working Party proposes, in the aforementioned guidelines, the creation by controllers of technical solutions, such as Application Programming Interfaces, in order to facilitate exchanges of data between different IT environments.
In short, as emphasised by the Article 29 Working Party, only cooperation between the different stakeholders in this matter in order to define common standards and interoperable formats can lead to full compliance with the added requirements for controllers under the GDPR, with regard to the personal data portability.
Rectification no. 272/2017 - Dirio da Repblica no. 86/2017, Series II of 2017-05-04
Rectifies the Annex to Regulation no. 1093/2016, published in Dirio da Repblica, 2nd series, no. 238, of 14 December 2016 (which approves the operating conditions applicable to the use of air space by civil remotely piloted aircraft (drones)).
Ordinance no. 157/2017 - Dirio da Repblica no. 90/2017, Series I of 2017-05-10
Makes the sixth amendment to Ordinance no. 1473-B/2008, of 17 December, approving the fees due for issuing declarations proving the rights to practice the activity of supplier of electronic communications networks and services, to allocate frequency and number usage rights, to use radio spectrum and other fees due to ICP - ANACOM.
Law no. 36/2017 - Dirio da Repblica no. 107/2017, Series I of 2017-06-02
Guarantees the rights of beneficiaries of the free use of works, making the twelfth amendment to the Code of Copyright and Related Rights, approved by Decree-Law no. 63/85, of 14 March.
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Decree-Law no. 57/2017 - Dirio da Repblica no. 112/2017, Series I of 2017-06-09
Lays down the rules governing the making available on the market, putting into service and use of radio equipment, transposing Directive no. 2014/53/EU.
Decree-Law no. 61/2017 - Dirio da Repblica no. 112/2017, Series I of 2017-06-09
Establishes the legal regime for the use of hazardous substances in electrical and electronic equipment, transposing Delegated Directives (EU) 2016/585, 2016/1028 and 2016/1029.
Regulation (EU) 2017/1128 of the European Parliament and of the Council of 2017-06-14. OJEU L-168/1, of 2017-06-30
Introduces a common approach in the Union to the cross-border portability of online content services, by ensuring that subscribers to portable online content services which are lawfully provided in their Member State of residence can access and use those services when temporarily present in a Member State other than their Member State of residence.
Regulation (EU) 2017/1001 of the European Parliament and of the Council of 2017-06-14. OJEU L 154/1, of 2017-06-16
Codifies the various legislative amendments to Council Regulation (EC) No 207/2009, of 26 February 2009 (on the EU trademark) over the years.
Rectification of Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009. OJEU L 162/56, of 2017-06-23
Rectifies Article 2.7, new Article 13.6, of Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws.
Notice no. 7175/2017 - Dirio da Repblica no. 123/2017, Series II of 2017-06-28
Draft Regulation amending ANACOM Regulation no. 58/2005 of 18 August (Portability Regulation), which establishes the principles and rules applicable to portability in public communications networks.
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Ordinance no. 201-A/2017 - Dirio da Repblica no. 125/2017, 1st Supplement, Series I of 2017-06-30
Approves the model, publication, prices, supply and distribution of the complaints book, in physical and electronic formats, and establishes the features of the digital platform that provides the electronic format of the complaints book.
III CASE LAW
Judgment of the Court of Justice (Fourth Chamber), of 2017-03-01. OJEU C-121, of 2017-0418 Case C-275/15 (Reference for a preliminary ruling -- Directive 2001/29/EC -- Harmonisation of certain aspects of copyright and related rights in the information society -- Article 9 -- Access to cable of broadcasting services -- Concept of `cable' -- Retransmission of broadcasts of commercial television broadcasters by a third party via the internet -- `Live streaming')
According to the judgment in question, Article 9 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, and specifically the concept of `access to cable of broadcasting services', must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.
Judgment of the Court of Justice (Seventh Chamber), of 2017-03-02, OJEU C-121, of 201704-18 Case C-568/15 (Reference for a preliminary ruling -- Consumer protection -- Directive 2011/83/EU -- Article 21 -- Communication by telephone -- Operation of a telephone line by a trader to enable consumers to contact him in relation to a contract concluded -- Prohibition on applying a rate higher than the basic rate -- Concept of `basic rate')
The Court of Justice ruled that the concept of `basic rate' referred to in Article 21 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, must be interpreted as meaning that call charges relating to a contract concluded with a trader to a telephone helpline operated by the trader may not exceed the cost of a call to a standard geographic landline or mobile telephone line. Provided that limit is respected, the fact that the relevant trader makes or does not make a profit through that telephone helpline is irrelevant.
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Judgment of Porto Appeal Court, of 2017-03-22, Case no. 7/13.8EACBR.P1, Rapporteur Maria Dolores Silva e Sousa. www.dgsi.pt
In this judgment, the Porto Appeal Court confirmed the decision of the first instance court, considering that the trademark "Licor Beirinha" imitates the previously registered trademark "Licor Beiro". The Court held that there are a number of similarities between the bottles of the two products, particularly with regard to format and configuration of the bottles, the positioning, format and configuration of the labels, the combination of colours on the labels, the letters that they contain and the bottle tops, and the words used on the labels (both comprising the word "Licor", while the words "Beiro" and "Beirinha" are very similar), therefore concluding that the "Licor Beirinha" label aims to lead consumers to confuse it with the "Licor Beiro" label.
Consequently, in view of the facts established, the court considered that all objective and subjective elements of the crime of which defendants the company that used the trademark "Licor Beirinha" and its two managing-partners had been held guilty were fulfilled, each of the accused being guilty of counts of imitation and illegal use of a trademark, crimes contrary to Article 323(b), by reference to Articles 222.1 and 245.1(a), (b) and (c), all of the Code of Industrial Property.
Judgment of the Court of Justice (Tenth Chamber), of 2017-03-30. OJEU C-161, of 2017-0522 Case C-146/16 (Reference for a preliminary ruling -- Unfair business practices -- Advertisement in a print medium -- Omission of material information -- Access to that information via the website by means of which the products concerned are distributed -- Products sold by the person who published the advertisement or by a third party)
According to this judgment, Article 7(4)(b) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 of the European Parliament and of the Council must be interpreted as meaning that an advertisement which falls within the definition of an `invitation to purchase' within the meaning of that directive, may satisfy the obligation regarding information laid down in that provision. It is for the referring court to examine, on a case-by-case basis, first, whether the limitations of space in the advertisement warrant information on the supplier being provided only upon access to the online sales platform and, secondly, whether, so far as the online sales platform is concerned, the information required by Article 7(4)(b) of that directive is communicated simply and quickly.
Judgment of the Court of Justice (Second Chamber), of 2017-06-14. www.curia.europa.eu Case C-610/15 (Reference for a preliminary ruling -- Intellectual and industrial property -- Directive 2001/29/EC -- Harmonisation of certain aspects of copyright and related rights --
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Article 3(1) -- Communication to the public -- Definition -- Online sharing platform -- Sharing of protected files, without the consent of the rightholder)
In the opinion of the Court of Justice set out in the judgment in question, the concept of `communication to the public', within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-topeer network.
Judgment of the Court of Justice (First Chamber), of 2017-06-14. www.curia.europa.eu Case C-75/16 (Reference for a preliminary ruling -- Consumer protection -- Alternative dispute resolution (ADR) procedures -- Directive 2008/52/EC -- Directive 2013/11/EU -- Article 3(2) -- Applications by consumers to set an order aside in the context of payment order proceedings instituted by a credit institution -- Right of access to the judicial system -- National legislation providing for mandatory recourse to a mediation procedure -- Obligation to be assisted by a lawyer -- Condition for the admissibility of proceedings before the courts)
According to the interpretation of the Court of Justice, Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes must be interpreted as not precluding national legislation which prescribes recourse to a mediation procedure, in disputes referred to in Article 2(1) of that directive, as a condition for the admissibility of legal proceedings relating to those disputes, to the extent that such a requirement does not prevent the parties from exercising their right of access to the judicial system.
On the other hand, that directive must be interpreted as precluding national legislation which provides that, in the context of such mediation, consumers must be assisted by a lawyer and that they may withdraw from a mediation procedure only if they demonstrate the existence of a valid reason in support of that decision.
Judgment of the Court of Justice (Second Chamber), of 2017-04-26. www.curia.europa.eu Case C-527/15 (Reference for a preliminary ruling -- Intellectual and industrial property -- Directive 2001/29/EC -- Harmonisation of certain aspects of copyright and related rights -- Article 3(1) -- Communication to the public -- Definition -- Sale of a multimedia player -- Addons -- Publication of works without the consent of the right holder -- Access to streaming websites -- Article 5(1) and (5) -- Right of reproduction -- Exceptions and limitations -- Lawful use)
In the opinion of the Court of Justice, the concept of `communication to the public', within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council
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of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering the sale of a multimedia player, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites -- that are freely accessible to the public -- on which copyright-protected works have been made available to the public without the consent of the right holders.
Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.
IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS
Opinion of the European Economic and Social Committee of 2017-01-25. OJEU C-125/27, of 2017-04-21
Opinion on the `Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market', on the `Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes' and on the `Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of works and other subject-matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society'.
Opinion of the European Economic and Social Committee of 2017-01-25. OJEU C-125/65, of 2017-04-21
Opinion on the `Proposal for a Regulation of the European Parliament and the Council establishing the Body of European Regulators for Electronic Communications'.
Summary of the European Authority for Data Protection Opinion of 2017-03-14. OJEU C200/10, of 2017-06-23
Opinion on the Proposal for a Directive on certain aspects concerning contracts for the supply of digital content.
Summary of the European Authority for Data Protection Opinion of 2017-03-15. OJEU C-164/2, of 2017-05-24
Opinion on the proposal for a regulation on the protection of individuals with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the
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free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC.
Summary of the European Authority for Data Protection Opinion of 2017-05-03. OJEU C200/14, of 2017-06-23
Opinion on the new legal basis of the Schengen Information System.
Opinion 1/2017, of 4 April 2017, of the "Article 29 Working Party", on the Proposed Regulation for the ePrivacy Regulation (2002/58/EC).
The Working Party welcomes the proposal from the European Commission from 10 January 2017 for an ePrivacy Regulation. The Working Party welcomes the choice for a regulation as the regulatory instrument. This ensures that rules are uniform across the entire EU, and provides clarity for supervisory authorities and organisations alike. It also helps ensuring consistency with the GDPR. Such consistency is further supported by the choice to make the same authority responsible for monitoring compliance with GDPR responsible for the enforcement of ePrivacy rules.
Simultaneously, the choice for (maintenance of) a complementary legal instrument is positive. The protection of confidential communication and terminal equipment has particular characteristics which are not addressed by the GDPR. Complementary provisions with respect to these kinds of services are therefore required to ensure adequate protection of the fundamental right to privacy and confidentiality of communications, including confidentiality of terminal equipment. In this regard, the Working Party strongly supports the principled approach chosen in the Proposed Regulation of broad prohibitions and narrow exceptions, and the targeted application of the concept of consent.
The Working Party welcomes the expansion of the scope of the Proposed Regulation to include Over-The-Top (OTT) providers, services that are functionally equivalent to more traditional communication means and therefore have a similar potential to impact on the privacy and right to secrecy of communications of people in the EU. It is also positive that the Proposed Regulation clearly covers content and associated metadata and recognises that metadata may reveal very sensitive data.
However, the Working Party also notes four points of grave concern. With regard to the tracking of the location of terminal equipment; the conditions under which the analysis of content and metadata is allowed; the default settings of terminal equipment and software and with regard to tracking walls the Proposed Regulation would lower the level of protection enjoyed under the GDPR. In this Opinion, the Working Party provides specific suggestions to ensure that the ePrivacy Regulation will guarantee the same, or a higher level of protection appropriate to the sensitive character of communications data (both content and metadata).
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With regard to WiFi-tracking, depending on the circumstances and purposes of the data collection, such tracking under the GDPR is likely either to be subject to consent, or may only be performed if the personal data collected is anonymised. In the latter case, the following four conditions have to be complied with: the purpose of the data collection from terminal equipment is restricted to mere statistical counting, the tracking is limited in time and space to the extent strictly necessary for this purpose, the data will be deleted or anonymised immediately afterwards, and there are effective opt-out possibilities. The European Commission is invited to promote a technical standard for mobile devices to automatically signal an objection against such tracking.
With regard to the analysis of content and metadata, the starting point should be that it is prohibited to process communications data without the consent of all end-users (senders and recipients). To allow providers to provide services explicitly requested by the user, such as for example search and indexing functionality or text-to-speech services, there should be a domestic exception for the processing of content and metadata for the purely personal purposes of the user him or herself.
With regard to consent for tracking, the Working Party calls for an explicit prohibition on tracking walls, that is, take it or leave it choices that force users to consent to tracking if they want to have access to the service.
Last but not least, the Working Party recommends that terminal equipment and software must by default offer privacy protective settings, and offer clear options to users to confirm or change these default settings during installation. The settings must be easily accessible during use. Users must be enabled to signal specific consent through their browser settings. Privacy preferences should not be limited to interference by third parties or be limited to cookies. The Working Party strongly recommends to make adherence to the Do Not Track standard mandatory.
The Working Party has also identified other points of concern, relating to for example the scope, the protection of terminal equipment and direct marketing. Last but not least, the Working Party has identified issues that deserve clarification, to better protect end-users, and to introduce more legal certainty for all stakeholders involved.
Opinion 2/2017, of 8 June 2017, of the "Article 29 Working Party", on data processing at work
This Opinion complements the previous Article 29 Working Party ("WP29") publications Opinion 8/2001 on the processing of personal data in the employment context (WP48), and the 2002 Working Document on the surveillance of electronic communications in the workplace (WP55). Since the publication of these documents, a number of new technologies have been adopted that enable more systematic processing of employees' personal data at work, creating significant challenges to privacy and data protection.
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This Opinion makes a new assessment of the balance between legitimate interests of employers and the reasonable privacy expectations of employees by outlining the risks posed by new technologies and undertaking a proportionality assessment of a number of scenarios in which they could be deployed.
Whilst primarily concerned with the Data Protection Directive, the Opinion looks toward the additional obligations placed on employers by the GDPR. It also restates the position and conclusions of Opinion 8/2001 and the WP55 Working Document, namely that when processing employees' personal data:
employers should always bear in mind the fundamental data protection principles, irrespective of the technology used;
the contents of electronic communications made from business premises enjoy the same fundamental rights protections as analogue communications;
consent is highly unlikely to be a legal basis for data processing at work, unless employees can refuse without adverse consequence;
performance of a contract and legitimate interests can sometimes be invoked, provided the processing is strictly necessary for a legitimate purpose and complies with the principles of proportionality and subsidiarity;
employees should receive effective information about the monitoring that takes place; and
any international transfer of employee data should take place only where an adequate level of protection is ensured.
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