This document discusses emerging trends in information and communications technology (ICT) and their implications for the legal framework in Europe. It identifies 11 key ICT trends, such as ubiquitous computing, cloud computing, digital natives, user-generated content, and the convergence of online and offline activities. For each trend, challenges for the current European legal system are described. The document also outlines recommendations to update EU legislation to address these challenges and keep European law "future proof" in the face of rapid technological change.

1. Convergence - Legal Aspects
Regulatory Framework
dr. Patrick Van Eecke
Partner, DLA Piper, Brussels
Professor University Antwerp

2. Agenda
 At stake
 Swiftly moving to a converging world
 Legal framework not at pace with technological developments
 EU response
 Digital agenda
2

3. European study
 Commissioned by the European Commission
(DG Information Society)
 From May 2008 until December 2009
 Holistic approach
1. Identify the ICT trends that will have a future impact
2. Identify the gaps in the current legal framework
3. Provide recommendations for making the European
legislation future proof
3

4. Team
 International Study team
Patrick Mina Joao Maarten Daniel
Van Eecke Zoulovits Traça Truyens Nepelski
 Global Advisory Board
Makoto Lawrence Ian
Ibusuki Lessig Walden
4

5. Current EU legal
framework

6. Current EU legal framework
© DLA Piper
6

7. Ten ICT Trends
Our life in 2020

8. Trend 1: Full accessibility

9. Full accessibility
 100 mb optical fibre
 Wifi anywere (also
in bus, train and
plane)
 Real time web
 Cfr Tokyo, cfr
Singapore
9

10. Full accessibility
 Allows HD real time video streaming, distance surgery, …
10

11. Real time web
 Twitter lead the media in breaking news about US Airways
flight 1549 crashing in New York's Hudson river and the
Mumbai bombing
11

12. Real time web
 Government to citizen real time crisis communication combined with
location based services
 Microsoft Vine after Katrina Hurricane
12

13. Full accessibility: legal challenges
 Clean Internet
 Net neutrality
 Digital divide
 Liability due to on-line naivety
 Security & cybercrime
13

14. Trend 2: Ubiquitous
Computing

15. Ubiquitous computing
 Internet of things
 Use of barcodes, RFID, NFC
15

16. RFID
16

17. Internet based Intervention in
Cardioverter-Defibrillator
17

18. 18

19. uComputing: Legal challenges
 Data protection
 Liability
 Security & cybercrime
19

20. Trend 3: new
intermediaries

21. New intermediaries
 Traditional players
 internet infrastructure providers
 access providers
 hosting providers
 New players: platforms
 eBay, eBid, …
 Layar, Mint
 Wikipedia
 Yahoo, Google
 Second Life, Eve
 MSN, Facebook, Myspace, Netlog, …
21

22. New intermediaries: legal challenges
 Liability limitations
 Applicable law
 Co-operation duties
22

23. Trend 4: Cloud computing

24. Cloud computing
 From homeserver to cloud computing
 Not limited to data, but also applications
 IaaS – Infrastructure as a Service
 PaaS – Platform as a Service
 SaaS – Software as a Service
 Biggest CC provider?
24

25. Cloud computing
 Aggregation of data:
combining structured/non
structured data
 Cfr Reuters (Open Calais)
 Cfr Google snippets
25

26. CC: data aggregation
 Example of extensive
data aggregation
26

27. Cloud computing: legal challenges
 Liability
 Data protection
 Applicable law
 Compliance (e.g. archiving outside EU)
 Data portability
 Copyright
27

28. Trend 5: Digital natives

29. Digital natives
I always do more than one thing in
parallel, otherwise I would feel like I
am running at partial capacity
You just don’t ask for a phone
number, you ask for a MSN
contact
I could spend 24 hours a day in
front of my PC and not get bored
With Facebook I can be available all
the time and always up-to-date with
what is going on. It’s important to be
part of everything
29

30. 30

31. 31

32. The Digital Native
 The Internet has become the new way for social networking
 P16-34 are 25% more likely than P35-49 to use instant messenger, with over 75% of P16-34
currently using at least one service.
 About 40% of P16-34 belong to a social network site; this is twice the percentage of P35-49
year olds.
 Nearly 40% of P16-34 have met someone face to face after meeting on the Internet.
 Yahoo, AOL and MSN Messenger are among the top Internet services in terms of awareness
and use by P16-34.
 This is followed closely behind by social networking site, Myspace.com with 43% of P16-34
being current users. In comparison, only 16% of P35-49 are using Myspace.
 Blogging and twittering is the “voice” of the new generation
 71% of P16-34 year olds have participated in a blogging activity.
 P16-34 are three times more likely (25%) than P35-49 to manage and/or write their own blog.
 While personal and family/friend are the most common types of blogs among the younger
group, more than 40% are developing photo and pop culture (music/film) blogs as well. This is
different from the older group, who are using blogs to share information and discuss current
news and world events.
32

33. The Digital Native
 File-sharing
 One third of P16-34s have participated in peer-to-peer file sharing compared to just 12% of
P35-49.
 With the continued advancement of mobile telecoms, mobile video uploads to sites such as
YouTube and Grouper will be increasingly commonplace, spreading quickly to more well known
social networking sites such as MySpace and Flickr.
 Multi-tasking
 Despite the emergence of new media platforms, consumers continue to bond with television
and other traditional media
 85% of heavy Internet users say they participate in other media related activities while online,
mostly watching television or listening to music.
 Always connected
 The only time when they aren’t communicating is when they are sleeping
 No geographical boundaries
 You NEVER lose touch with people unless you want to
 When you change schools you can keep in touch with the same people, through university,
through different jobs, moving location…
 You decide who makes up your friendship group, not circumstance
33

34. The Digital Native
 Other legal reference model
 Geographical link not relevant
 Alternative identity management
 Alternative dispute resolution
mechanisms
 Own codes of behavior
34

35. Digital natives: legal challenges
 New legal paradigms
 Lack of public support for legal initiatives taken by digital
immigrants
35

36. Trend 6: i2i

37. i2i
 Individual to individual
 Cutting out the middle man
 eBay, Zopa, P2P, Second Life
37

38. i2i: legal challenges
 Applicable law
 Consumer protection
 Enforceability
38

39. Trend 7: Consumerisation

40. Consumerisation of IT
 Convergence between consumer and corporate tools and
devices
 WiFi
 'smart' mobile phones & personal electronic devices
 Blogs and wiki’s
 instant messaging & the Internet
 even the PC itself
 Google Desktop, Skype
40

41. Legal challenges
 Electronic contracting
 Electronic archiving
 Liability employer - employee
41

42. Trend 8: Community driven

43. Community driven
 Social networks
 Trust model
43

44. Legal challenges
 Alternative dispute resolution schemes
 Alternative reputation schemes
 Alternative identification schemes
 Alternative payment schemes
 Democratic deficit?
44

45. Trend 9: Focus on content

46. Focus on content
 Real time high quality content
 User generated content
 Combination of content
 From content to product
46

47. Real time high quality content
47

48. User generated content
48

49. Content combination
49

50. From content to product
50

51. 3D printing
51

52. 3D printing
52

53. 3D printing
 Jay Leno has a lot of old cars with a lot of obsolete parts. When
he needs to replace these parts, he skips the error-prone
machinist and goes to his rapid prototyping 3D printer.
 The 3D scanner next to Jay creates a digital model of this flanged nut
from Jay’s EcoJet supercar. The nut takes 20 minutes to scan and
reverse model and 3 hours to print in plastic.
53

54. 3D printing
54

55. Content: legal challenges
 Copyright
 Trademarks
 Patents
 Industrial design rights
 Trade secrets
55

56. Trend 10: off line and
online convergence

57. Off line & on line convergence
Barriers between off line and on line world fading away
 Real time web
 Mobile applications
 Location based services (augmented reality)
 Surface computing
 Merging social networks
57

58. Location based services
 Augmented reality
 Combination of mobile web, camera, compass and GPS
 E.g. iPhone, Android, Layar
 Step by step tourist guides, real estate, musea, …
58

59. Augmented reality
59

60. Surface computing
 Multi-touch, multi-user interface, object recognition and
gestural interaction
 Microsoft Surface, Apple tablet PC
60

61. Merging social networks
61

62. 62

63. 63

64. Legal challenges
 Dual legal framework
 Conflict of laws
64

65. Trend 11: Measureability

66. Measureability
 Everything is measureable
 Personalised content, behavioral advertising
 Allows new business models (e.g. Google Adwords, Freemium
models, … )
 Phorm, Bluelithium
66

67. Legal challenges
 Data protection
 Copyright
67

68. Challenges for Europe

69. Legal challenges for Europe
From i2010 to i2020
The future of  data protection in the information society
 copyright
 liability
 money
 contracting
 dispute resolution
 consumer protection
…
69

70. Recommendations to EU

71. Recommendations
 100 recommendations made towards the Commission
 Some examples
71

72. Examples of recommendations
 The definition of "information society services" (as used in the
E-commerce Directive) must be decoupled from article 50 the EC
Treaty and must include all online activities, whether or not
provided for remuneration.
 The current EU legal instruments on jurisdiction (Brussels I) and
applicable law (Rome I - II) must be modified to take into account
online issues. In particular, clear rules must be established on
which country's tort laws apply in case of copyright breaches,
defamation issues, and unlawful processing of personal data.
 Steps must be taken to clarify that the scope of the "coordinated
field" in the E-commerce Directive covers any rule that can affect
an online service provider, with the single exception of a rule that
indiscriminately applies to both the online and the offline
environment.
72

73. Examples of recommendations
 A "right to forget" should be introduced, allowing citizens to
ask a data controller to remove personal data as from a
specified period of time (for example, five years), regardless of
whether the data controller has reserved the right to keep
using the data in the future.
 A "right to data portability" should be introduced, allowing
citizens to request a copy of the personal data held by the data
controller.
 The private use exception must be extended, so that it also
covers internet publishing activities undertaken by consumers.
 The adoption of multi-territorial licensing must be further
encouraged in order to increase legal certainty of commercial
users and foster the development of legitimate online services.
73

74. Examples of recommendations
 A harmonised and detailed notice-and-takedown procedure
must be introduced, which balances the rights of all
stakeholders.
 The scope of the special liability regime must be enlarged
and clarified, by replacing the current three-fold structure with
a two-fold structure (mere conduit service providers and "third
party information processors"). Community-driven platforms,
platforms with user generated content and cloud computing
services must in particular fall under the special liability regime.
 The scope of the new exceptions of the revised E-money
Directive (the "limited networks" exception of article 1.4 and
the "value added services" exception of article 1.5) must be
clarified in order to resolve the legal uncertainty faced by many
emerging online payment services.
74

75. Examples of recommendations
 Harmonised rules on e-archiving and digital evidence must
be adopted.
 A "comply or explain" approach (self-regulation) should be
adopted, which allows access providers to engage in legitimate
bandwidth management practices, but discourages other net
neutrality interferences.
 Article 13 of the E-privacy Directive must be adapted in order
to include new forms of spam and solve issues with the
current legal framework.
 Etc, etc.
75

76. Next steps?

77. 77

78. Digital Agenda
 A Digital Agenda for Europe
 Commission Communication of 19 May 2010 - COM(2010) 245
 part of the Europe 2020 Strategy
 Successor of i2010, A European Information Society for growth
and employment
 European Commission Communication of 1 July 2005,
COM(2005) 229 final
 part of the Lisbon Agenda
78

79. 7 priority areas for action
1. Creating a Digital Single Market
2. Improving the framework conditions for interoperability
between ICT products and services
3. Boosting internet trust and security
4. Guaranteeing the provision of much faster internet access
5. Encouraging investment in research and development
6. Enhancing digital literacy, skills and inclusion
7. Applying ICT to address social challenges such as climate
change, rising healthcare costs and the ageing population.
79

80. 7 obstacles hindering that goal
1. Fragmented digital markets
2. Lack of interoperability
3. Rising cybercrime and risk of low trust in networks
4. Lack of investment in networks
5. Insufficient research and innovation efforts
6. Lack of digital literacy and skills
7. Missed opportunities in addressing
societal challenges
80

81. 16 key actions for overturning the obstacles
 Key Action 1: Simplify copyright clearance, management and
crossborder licensing by:
 Enhancing the governance, transparency and pan-European
licensing for (online) rights management by proposing a
framework Directive on collective rights management (2010)
 Creating a legal framework to facilitate the digitisation and
dissemination of cultural works in Europe by proposing a Directive
on orphan works, to conduct a dialogue with stakeholders with a
view to further measures on out-of print works, complemented by
rights information databases (2010)
 Reviewing the Directive on Re-Use of Public Sector Information,
notably its scope and principles on charging for access and use.
(2012)
81

82. 16 key actions
 Key Action 2: Ensure the completion of the Single Euro
Payment Area (SEPA), eventually by binding legal measures
fixing an end date for migration and facilitate the emergence of
an interoperable European eInvoicing framework through a
Communication on eInvoicing and by establishing a
multistakeholder forum (2010)
 Key Action 3: Propose a revision of the eSignature Directive
with a view to provide a legal framework for cross-border
recognition and interoperability of secure eAuthentication
systems (2011)
 Key Action 4: Review the EU data protection regulatory
framework with a view to enhancing individuals' confidence
and strengthening their rights (2010)
82

83. 16 key actions
 Key Action 5: As part of the review of EU standardisation
policy, propose legal measures on ICT interoperability to
reform the rules on implementation of ICT standards in Europe
to allow use of certain ICT fora and consortia standards (2010)
 Key Action 6: Present measures aiming at a reinforced and
high level Network and Information Security Policy, including
legislative initiatives such as a modernised European Network
and Information Security Agency (ENISA), and measures
allowing faster reactions in the event of cyber attacks,
including a CERT for the EU institutions (2010)
 Key Action 7: Present measures, including legislative
initiatives, to combat cyber attacks against information
systems, and related rules on jurisdiction in cyberspace at
European and international levels by (2010-2013)
83

84. 16 key actions
 Key Action 8: Adopt a Broadband Communication that lays
out a common framework for actions at EU and Member State
to meet the Europe 2020 broadband targets, including:
 Reinforce and rationalise, in this framework, the funding of high-
speed broadband through EU instruments and explore how to
attract capital for broadband investments through credit
enhancement (2014)
 Propose an ambitious European Spectrum Policy Programme that
will create a co-ordinated and strategic spectrum policy at EU level
in order increase the efficiency of radio spectrum management
and maximise the benefits for consumers and industry (2010)
 Issue a Recommendation in 2010 to encourage investment in
competitive Next Generation Access networks through clear and
effective regulatory measures (2010)
84

85. 16 key actions
 Other actions relating to
 Research and Innovation
 Enhancing digital literacy, skills and inclusion
 ICT-enabled benefits for EU society
 Example:
 Propose a Council and Parliament Decision to ensure mutual
recognition of e-identification and e-authentication across the EU
based on online 'authentication services' to be offered in all Member
States (which may use the most appropriate official citizen documents
– issued by the public or the private sector) (2012)
85

86. Conclusion

87. More info?
Patrick Van Eecke
patrick.van.eecke@dlapiper.com