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Technology – legal outlook for 2012


The start of a new year is an opportunity to reflect on possible developments over the next year, writes Pitmans’ Rustam Roy, senior solicitor, technology


The legal environment of the technology sector is unlikely to see any substantive changes in the next 12 months. We anticipate however that the following issues will form the basis of much discussion for technology specialists. We are already advising many firms in the region on exploiting the commercial opportunities generated by these issues.


Software development


A 2011 judgment from the European Court is likely to give food for thought to software developers who assumed that user interfaces in computer programs cannot be protected by copyright, thereby reducing the cost of developing applications able to link with other, copyright-protected applications. The Advocate General’s opinion in SAS v WPL suggests that there may be elements or expressions of a computer program other than object code or source code (traditionally regarded as


protectable by copyright) which can also be protected – provided they form a substantial portion of the source program.


ISP and intermediaries


The injunction on BT in the Newzbin2 case showed that courts are willing to force ISPs to put reasonable measures in place to prevent access to websites which contain copyright- infringing material. The judgment in Scarlet v SABAM also shows that an ISP is unlikely to be asked to put in place blanket measures that affect all its users. Neither judgment clarifies the cost implications of these measures and intermediaries will be keeping an eye out for further developments in this space.


Data protection


Early this year, the European Commission will publish its proposals to reform data protection law in the EU. From the draft published in late


2011, we know that some of the changes will make it easier for businesses to comply with data protection law, while others will give data subjects greater rights in relation to their personal data, as well as impose a higher monetary penalty for serious breaches. The balance struck will be vital for those businesses at the frontline of data protection, eg those active in developing behavioural advertising applications.


Cloud computing


An increasingly mature technology, this is likely to see greater use by small and medium-sized businesses and individuals – especially in relation to online storage of music and other data (subject to the relevant copyright licences). However, important questions such as compliance with data protection law (in particular, transfer of data outside the EU) and data portability will continue to be of relevance, with smaller businesses and individuals unlikely to have the bargaining power to negotiate material changes in a supplier’s terms of business.


Apart from the specific issues above, the current economic climate will continue to force technology businesses to get the most out of their technology and intellectual property assets and their clients to get the most out of any money spent on new technology. Appropriate licensing and purchase strategies, with an element of flexibility, will continue to be at the core of legal work in this sector.


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Rustam Roy


Senior Solicitor Technology


www.pitmans.com/technology +44 (0)118 957 0264 THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – FEBRUARY 2012 www.businessmag.co.uk


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