This Week’s Techlaw News Round-Up

July 28, 2023

UK law

Court of Appeal rules that technical trade secrets should not be disclosed in order after judgment

The case arose in the context of a decision by the Patents Court that a patent was valid and infringed. The parties involved had a further dispute about confidentiality issues regarding the order the Court was going to make following the decision. The trial judge decided that information Manitou wanted to be protected from disclosure in the final order was not valuable enough to outweigh the principle of open justice. The decision was appealed and the Court of Appeal reversed the first instance decision in JC Bamford Excavators Ltd v Manitou UK Ltd and another [2023] EWCA Civ 840. The Court of Appeal considered the case law about the disclosure of trade secrets in litigation as well as the Trade Secrets Directive (2016/943/EU) and the Trade Secrets (Enforcement etc) Regulations 2018 (SI 2018/597). The court said that the parties had both erred in their arguments because they had not accurately categorised the nature of the information Manitou wanted to protect them from being disclosed. The court said this information should be considered to be technical trade secrets. If it was necessary to protect trade secrets, open justice must give wat to a greater principle, which is justice itself. This meant that not only must the court sit in private to some extent, but also part of the court’s judgment must be redacted (or kept confidential in some other way). This may make it impossible for the public to understand the details of the court’s reasoning, but the court said that is the price that must be paid for proper protection of trade secrets.

Consultation of UK-related domain names powers launched

The Department for Science, Innovation and Technology is seeking views on proposals for the design of regulations in relation to UK-related domain name registries. The consultation asks for views on the abuse of relevant domain names, to ensure procedures remain in place to deal with both misuse and unfair uses of domain names. Responses to the consultation will help DSIT design a set of regulations which are workable, proportionate and fit for purpose. The consultation ends on 31 August 2023.

UK government consults on maximum stake limit for online slots games

Following the review of the Gambling Act 2005, the UK government published its Gambling White Paper setting out its plans for modernising the regulation of the gambling sector. One of the key proposals in the White Paper was the introduction of a maximum stake limit for online slots games. The government is now consulting on a stake limit of between £2 and £15 per spin and slot-specific measures to give greater protections for 18 to 24-year-olds who the evidence suggests may be a particularly vulnerable cohort. It is seeking views on details to support the effective implementation of the policy, including the meaning of “online slots games”, “maximum stake” and “spin/game cycle”. The consultation ends on 20 September 2023. Following the consultation, the government will publish a formal response to set out its decision and reasoning before implementing the changes. The Gambling Commission is also consulting on various changes, including remote games design.

PSA announces minor amendments to the Code to address consumer detriment in the ICSS market

The Phone-paid Services Authority (PSA) has announced minor amendments to its Code to address consumer detriment in the Information, Connection ,and Sign-posting Services market following consultation and Ofcom approval. The changes are intended to reduce detriment associated with consumer misunderstanding, limit detriment caused by high call costs, and reduce the risk of forced cut-offs that result in consumer detriment. Providers are required to comply with the changes by 18 September 2023.

EU law

CJEU rules on IPTV service providing commercial customers with hardware and software to allow end users to replay online TV broadcasts

The CJEU has ruled in the case of Ocilion IPTV Technologies v Seven.One Entertainment Group GmbH and another (Case C-426/21). It considered questions referred by the Austrian courts about the making available by Ocilion to its commercial customers of an Internet Protocol television (IPTV) service by which the content of television programmes in respect of which Seven.One and Other are the rightsholders was broadcast for the benefit of end users. The CJEU ruled that Article 2 and Article 5(2)(b) of Directive 2001/29/EC means that the exception to the exclusive right of authors and broadcasting organisations to authorise or prohibit the reproduction of protected works does not cover a service offered by an operator of retransmission of online television broadcasts to commercial customers allowing, on continuous or one-off recording of those broadcasts, on the initiative of the end users of that service, where the copy made by the first of those users to have selected a broadcast is made available, by the operator, to an indeterminate number of users who wish to view the same content. It also ruled that Article 3(1) of Directive 2001/29 means that the supply by an operator of retransmission of online television broadcasts to its commercial customer of the necessary hardware and software, including technical assistance, which enables that customer to allow its own customers to replay online television broadcasts, does not constitute a “communication to the public” under that provision, even if that operator is aware that its service may be used to access protected broadcasting content without the consent of the authors.

Advocate General says that privacy copying exception for fixations of broadcasts under national law should be combined with right to fair compensation

The Advocate General has issued an opinion in the case of Seven.One Entertainment Group GmbH v Corint Media GmbH (Case C-260/22). The opinion stated that Articles 2(e) and 5(2)(b) of Directive 2001/29/EC should be interpreted as precluding an EU member sate from providing a private copying exception to the exclusive reproduction right of broadcasting organisations in fixations of their broadcasts while excluding a right to fair compensation in respect of that copying where it causes them more than minimal harm. The fact that broadcasting organisations may be entitled to fair compensation under to Article 5(2)(b) of Directive 2001/29 in their capacity as film producers is irrelevant.