CONTENTS INTELLECTUAL PROPERTY, MEDIA AND IT NEWSLETTER I 4TH QUARTER 2016 I USE OF AIR SPACE BY REMOTELY PILOTED CIVILIAN AIRCRAFT SYSTEMS (‘DRONES’) 2 II LEGISLATION 3 III CASE LAW 3 IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS 6 NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 2/8 INTELLECTUAL PROPERTY, MEDIA AND IT NEWSLETTER I USE OF AIR SPACE BY REMOTELY PILOTED CIVILIAN AIRCRAFT SYSTEMS (‘DRONES’) On 14 December 2016, Regulation no. 1093/2016 was published in the Diário da República, setting out the operating conditions applicable to the use of air space by remotely piloted civilian aircraft systems (‘drones’). Indeed, this activity was in urgent need of regulation, since various high risk situations had already occurred arising from the use of drones, particularly near airports (Lisbon and Faro), that could have clearly caused serious aviation accidents. This Regulation consists of an ‘attempt’ to regulate the use of drones for recreational and professional purposes, establishing specific rules for the use of ‘toy’ drones, in accordance with the provisions of ‘Toy Aircraft’ law, and for the use of other types of drones. Protection of Personal Data: The Regulation establishes in its introduction that it does not exclude the need for drone operators and pilots to comply with other legal regimes that are applicable. It mentions, as an example and as a result of the mass use of devices intended to collect images on remotely piloted aircraft, the need for compliance with Law no. 67/98, of 26 October, as amended by Law no. 103/2015, of 24 August, which approved the Law of Protection of Personal Data. It also mentioned the fact that their use for aerial surveys, including photography, aerial filming and their dissemination, require authorisation from the National Aeronautical Authority pursuant to specifically applicable legislation, in particular Law no. 28/2013, of 12 April, Decree-Law 42071, of 30 December 1958 and Ordinance 17568, of 2 February 1960, as amended by Ordinance 358/2000, of 20 June. ‘Toy’ drones: The Regulation establishes that ‘toy’ drones: - have a maximum weight of 250 grams and not equipped with a combustion engine: - are designed or intended, exclusively or not, to be used for recreational purposes by children aged less than 14; - can only perform daytime flights up to a maximum altitude of 30 metres, etc. Other drones: The Regulation establishes that other types of drones: - can only perform daytime flights up to a maximum altitude of 120 metres (night-time flights or flights above 120 metres requires authorisation from the ANAC – National Civil Aviation Authority); - may not fly over outdoor concentrations of more than 12 people, unless authorisation has been obtained from the ANAC, or near the operational protection area of airports and aerodromes, etc. WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 3/8 Omissions: The Regulation is full of good intentions, but also of omissions, some of which are very important: – it does not require or institute any form of register of drone owners; – it does not establish any form of licensing obligation for owners or ‘pilot’ of drones. Privacy and Security: Drones are a new threat to the privacy of us all. In a ‘Big Brother is watching you’ era, this will be one of the most intrusive means of invading the private life of public figures with high media appeal and of anonymous citizens. Privacy versus security obviously has to be considered in this matter, since that which is a threat can also be extremely useful in critical situations, when searching for missing people in places that are hard to reach. II LEGISLATION Regulation No.1058/2016 Diário da República No. 226/2016, Series II of 2016-11-24 This Regulation (Regulation on the legal regime on health advertising practices) establish rules on the form of identification of the parties in whose name health advertising practices are carried out, as well as the details of the message or information disclosed, for the purposes of Article 4.1 and Article 5.1 of Decree-Law 238/2015, of 14 October. III CASE LAW Judgment of the Court of Justice of the European Union (Second Chamber), of 2016-09- 08 OJEU C 402/7 de 2016-10-31 Case C‑160/15 (Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Definition — Internet — Hyperlinks giving access to protected works, made accessible on another website without the right holder’s consent — Works not yet published by the right holder — Posting of such links for a profit) 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 meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a “communication to the public” within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed. WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 4/8 Judgment of the Court of Justice of the European Union (Third Chamber), of 2016-09-15 OJEU C419/4 of 2016-11-14 Case C‑484/14 (Reference for a preliminary ruling — Information society — Free movement of services — Commercial wireless local area network (WLAN) — Made available to the general public free of charge — Liability of intermediary service providers — Mere conduit — Directive 2000/31/EC — Article 12 — Limitation of liability — Unknown user of the network — Infringement of rights of right holders over a protected work — Duty to secure the network — Tortious liability of the trader) According to this judgement, Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (“Directive on electronic commerce”), read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 (laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services), must be interpreted as meaning that a service provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an “information society service” within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider. For the Court, Article 12(1) of Directive 2000/31 must be interpreted (1) as meaning that, in order for the service consisting in providing access to a communication network, to be considered to have been provided, that access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied, and (ii) must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply mutatis mutandis to Article 12(1) of Directive 2000/31. Article 12(1) of Directive 2000/31 must be interpreted as meaning that a person harmed by the infringement of its rights over a work is precluded from claiming compensation from an access provider on the ground that the connection to that network was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue. WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 5/8 In accordance with the findings of the Court of Justice, Article 12.1, of Directive 2000/31, together with its paragraph 3, must be interpreted, having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, must be interpreted as precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a provider of access to a communication network allowing the public to connect to the internet to prevent third parties from making a particular copyright-protected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via an internet connection available in that network, where, although that provider may determine which technical measures to take in order to comply with the injunction, even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain. Judgment of the Court of Justice of the European Union (Second Chamber), of 2016-09- 22 OJEU C419/15 of 2016-11-14 Case C-110/15 (Reference for a preliminary ruling — Approximation of laws — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Exclusive right of reproduction — Exceptions and limitations — Article 5(2) (b) — Private copying exception — Fair compensation — Conclusion of agreements governed by private law to determine the criteria for exemption from payment of fair compensation — Request for reimbursement of compensation confined to the final user) EU law, in particular, Article 5(2)(b) 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 precluding national legislation, that, on the one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, provides that the reimbursement of such a levy, where it has been unduly paid, may be requested only by the final user of those devices and media. Judgment of the Court of Justice of the European Union (Third Chamber), of 2016-10-12 OJEU C462/3 of 2016-12-12 Case C-166/15 (Reference for a preliminary ruling — Intellectual Property - Copyright and related rights - Directive 91/250/EEC Article 4(a) and (c) — Article 5 (1) and (2) - Directive 2009/24/EC -Article 4 (1) and (2) - Article 5(1) and (2) - Legal protection of computer programs — Sale of non-original copies of computer programs — Resale of copies incorporated in a material medium other than the original material medium — Exhaustion of the right of distribution — Exclusive right of reproduction) WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 6/8 Article 4(a) and (c) and Article 5(1) and (2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the right holder. Judgment of the Court of Justice of the European Union, of 2016-12-21 www.curia.europa.eu Joined cases C-203/15 and C-698/15 The Member States may not impose a general obligation to retain data on providers of electronic communications services. EU law precludes a general and indiscriminate retention of traffic data and location data, but it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the chosen duration of retention, limited to what is strictly necessary. Access of the national authorities to the retained data must be subject to conditions, including prior review by an independent authority and the data being retained within the EU. IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS Resolution ERC/2016/249 (OUT-TV), of the Regulatory Board of the Regulatory Body for the Media (ERC), of 2016-11-22. www.erc.pt In this resolution, the ERC establishes the criteria for assessment of breach of the provisions of paragraphs 3 and 4 of Article 27 of the Television Law, which aim to protect more sensitive audiences, particularly children and adolescents, consolidating concepts such as gratuitous violence and pornography. The publication of these criteria is intended to help clarify the position of the ERC on this matter and raise awareness among television operators of the need to protect these audiences. Agreement between the United States of America and the European Union on the protection of personal data relating to the prevention, investigation, detection, and prosecution of criminal offenses. OJEU L336/3 of 2016-12-10 WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 7/8 The purpose of this Agreement is to ensure a high level of protection of personal data and enhance cooperation between the United States and the European Union and its Member States, in relation to the prevention, investigation, detection or prosecution of criminal offenses, including terrorism. However, the Agreement shall not be the legal basis for any transfers of personal information. A legal basis for such transfers shall always be required. Resolution no. 1495/2016 of the CNPD (National Data Protection Commission), of 2016- 09-6. www.cnpd.pt Publication of personal data of students on the websites of the education establishments The publication by schools of personal data of their students on the Internet causes apprehension regarding the risks raised by the Internet for the privacy of the students, since it is an open network without limits of time or space, as well as regarding the fact that the data subjects are children, hence deserving of added protection due to their vulnerability. The CNPD believes that schools must draw up lists with only those details strictly necessary to comply with the legal obligation to announce grades and must refrain from disclosing any other personal information. In addition, education establishments must not publish lists of students’ grades on open access websites and the lists previously published on the Internet must be removed, taking measures to force the deletion of data cached by search engines. The provision of each student’s assessment to be viewed by their parent or guardian, in a restricted area of the Internet, subject to strict, duly licensed, user authentication mechanisms, is considered admissible by the CNPD. With regard to the disclosure of lists of children and students who have applied for registration or whose registration has been renewed, the provision of this information in a restricted area is admitted, provided security requirements are respected that imply, in particular, strict control of registered users and strong authentication mechanisms. The personal data set out in a student’s personal file (classes, curricular and extracurricular activities) may be retained on the school’s institutional website, in a restricted area, until the end of the corresponding school year. The publication of images and/or the voice of students requires not only on their informed, free, specific and express consent, through their parents or guardians, but also the adoption of the necessary security measures. However, schools must reduce the publication of images and sound of students to the essential minimum, prioritising the WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL PROPERTY, MEDIA AND IT 8/8 recording of images from a distance and from angles in which the children are not easily identifiable. It is accepted that teaching staff may access the internal computer system of schools through the internet, provided mechanisms are used that guarantee the confidentiality of communications and a strict user management policy is adopted that guarantees that the access to personal data respects the need-to-know principle, depending on the duties performed and powers conferred. Education establishments must draw up internal policies on the conditions required for publication of personal data on their websites and develop robust security policies. Any consent obtained from parents or guardians or from the young people themselves for recording images and voice must now be included in the student’s personal file. CONTACT CUATRECASAS, GONÇALVES PEREIRA & ASSOCIADOS, RL Sociedade de Advogados de Responsabilidade Limitada LISBOA Praça Marquês de Pombal, 2 (e 1-8º) I 1250-160 Lisboa I Portugal Tel. (351) 21 355 3800 I Fax (351) 21 353 2362 firstname.lastname@example.org I www.cuatrecasas.com PORTO Avenida da Boavista, 3265 - 5.1 I 4100-137 Porto I Portugal Tel. (351) 22 616 6920 I Fax (351) 22 616 6949 email@example.com I www.cuatrecasas.com This Newsletter was prepared by Cuatrecasas, Gonçalves Pereira & Associados, RL for information purposes only and should not be understood as a form of advertising. The information provided and the opinions expressed herein are of a general nature and should not, under any circumstances, be a replacement for adequate legal advice for the resolution of specific cases. Therefore, Cuatrecasas, Gonçalves Pereira & Associados, RL is not liable for any possible damages caused by its use. Access to the information provided in this Newsletter does not imply the formation of a lawyer-client relationship or of any other sort of legal relationship. 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Intellectual Property, Media and IT Newsletter (Portugal) - February 2017
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