Predictions: Final Treats

December 10, 2014

The last tasty morsels in the box of predictions are here. (Although we are still open to late deliveries for publication on the web site.) Mark Kenrick, Matt James, Marion Oswald, Monica Horten, Jane Seager and Joanne Frears offer their expert views.

{b}From Mark Kenrick, Partner, Marks & Clerk LLP{/b}

2015 is sure to see continued debate as to exactly what software is and is not patentable in the USA. The birthplace of the ‘software patent’ has considerably limited the ambit of patent protection over the last few years, most recently with the Supreme Court’s opinion in Alice. This will continue to cause uncertainty as the US Patent Office and lower US courts try to understand exactly where the line should be drawn between the patentable and the unpatentable. The losers in all this will no doubt be SMEs who are left with uncertainty as to the value of their portfolios and as to what they should seek to protect in future.

Meanwhile, on this side of the Atlantic, we can look forward to continuing certainty. The European Patent Office shows no sign of doing anything other than applying its now long-established approach which – right or wrong – has provided prolonged certainty in this difficult area.

{b}From Matt James, Director, Eccomplished – the retail technology accelerator:{/b}

2015 will be a year of continued innovation and transformation within retail driven by consumer behaviour and the rise of the millennials – the digital, mobile-first generation.

Online and offline retail will continue to converge with increasing moves to build a unified view of retail with particular attention to customers and inventory. This will see more investment in data, its collection, organisation and analysis.

Retailers will increasingly look to leverage mobile as the bridge between online and offline retail and this will lead to more widespread experimentation with proximity technologies such as ibeacons, which really started making inroads into retail’s consciousness during 2014.

After the successes of click-and-collect, innovation in delivery and fulfilment will be an area to watch in 2015. Click-and-collect and click-and-try will continue to become commonplace and retailers will experiment further with technologies that can provide more convenient ways of getting products into customers’ hands faster.

{b}From Marion Oswald, Head of the Centre for Information Rights, University of Winchester. Organiser of the 2nd Conference on Trust, Risk, Information & the Law, 21 April 2015: Call for Papers {here:}{/b}

Attitudes to privacy will continue to polarise. Two of the main players – ‘data-hungry’ corporations and privacy technologists – will develop new technologies in an attempt to frustrate the other. Both will argue that they have the ‘innocent’ end-user’s best interests in mind. New tracking technology will defeat existing countermeasures. End-users will be encouraged to fight back with privacy-enhancing technologies, but apathy will, in the main, prevail. The law will cling to the concept of consent as the way of regulating personal data use, and to justify the imposition of one-sided terms and conditions by social media providers. We’ll find out whether Google Glass and the like are merely a flash-in-the-pan or a longer term phenomenon. If the latter, will people become ‘privacy vigilantes’ in their own defence with the use of Glass ‘blockers’ and what will that mean for computer misuse offences?

{b}From Dr Monica Horten, Visiting Fellow at LSE. Author of ‘A Copyright Masquerade: how corporate lobbying threatens online freedoms’ (Zed 2013); and ‘The Copyright Enforcement Enigma – Internet Politics and the Telecoms Package’ (Palgrave 2012). Website: Twitter @Iptegrity{/b}

I’ve chosen to resist the obvious dig at the new European Commission, and Commissioner Oettinger’s non-answer on software back-doors, not to mention net neutrality or copyright. Instead, I’d prefer to look at the broader policy question of governments seeking ‘better’ relationships with technology companies. This, surely, is the significant new policy issue that will arise for 2015. If the call from Robert Hannigan (the new director of GCHQ) for a public debate in his article in the FT (3 November 2014) was genuine then we should have that debate, especially here. In light of the Snowden revelations, the eyes of the rest of the world will be on the UK in respect of its handling of Internet surveillance and anti-terrorism. Hence the UK policy response will have a global impact. In this context, it is very important for the UK to work carefully through the balancing act between giving the State what it needs to deal with a very serious threat, and not violating the privacy and free speech rights of the majority of the population.

The role of the technology companies as Internet intermediaries and mere conduits, at the same time as being data processing repositories for States, is an uncomfortable issue for governments who are also duty-bound to guarantee fundamental rights. In 2015, this is the nettle that will have to be grasped, and real leadership is needed.

{b}From Jane Seager, Counsel, Hogan Lovells:{/b}

Last year I predicted that around 1,000 new generic Top Level Domains (gTLDs) would in fact be in use by the end of 2014, further to the opening of applications by ICANN in 2012. This proved rather optimistic, and 500 seems to be nearer the mark (by the end of 2015 there should be at least 1,000 though). Some have proved distinctly unpopular, generating only a mere handful of registrations (there have so far been very few takers for .RICH, for example, although these names were very expensive, of course), but others have done relatively well, particularly the city TLDs (at the time of writing .BERLIN had almost 155,000 registrations). So far not many of these new gTLDs are actually being used in their own right, but merely pointing to web sites using ‘old’ TLDs, and thus the predicted radical change to the shape of the Internet has yet to take place. I think this is partly because domain owners are not sure that we are ready for new gTLDs (hands up how many people would think that was just a misprint?) and partly because of fears relating to the unknown impact of using a new gTLD on a web site’s search engine rankings. However, I predict that we will start to see mainstream usage of new gTLDs in 2015 and this will snowball quite quickly.

Last year I also predicted that the focus would shift from pre-delegation issues at the top-level, such as objections, to post-delegation issues at the second-level, in particular rights protection mechanisms for brand owners to deal with the predicted increase in cybersquatting. In this regard the new Uniform Rapid Suspension System (URS) has been a successful weapon in tackling clear-cut cases of cybersquatting, but the decisions have shown that there is still a need for the now familiar Uniform Domain Name Dispute Resolution Policy (UDRP) in more difficult cases, especially where transfer is required. What is not yet known is what will eventually happen to domain names suspended as a result of URS decisions once that suspension is lifted – will they simply be allowed to lapse, be snapped up again by cybersquatters, or registered by the trade mark owners themselves? I would think that many brand owners, having gone to the trouble of filing a URS complaint, will eventually try and register them, and this will result in the subsequent expansion of domain name portfolios that many had feared. What’s more, the process is far from over, and I predict that the next round of new gTLD applications will take place in 2017, with 2015 being a time for reflection on the successes and failures of the first round with a view to perfecting round two.

Going beyond the world of domain names, we will hear much more about the so-called ‘darknet’ in 2015 as more and more people wish to preserve their anonymity online for many and varied reasons. I predict that 2015 will also be the year that online ‘TV on demand’ really takes off, as illustrated by the BBC’s mooted closure of BBC Three in Autumn 2015, with some of its content shifting to the iPlayer. Real-time audiences will begin to dwindle and 2015 could mark the start of a dramatic decline in traditional television viewing as we know it – the days when millions of people would all tune in to watch the same film at the same time on Christmas Day are already long gone, and the sheer convenience of being able to watch whatever, whenever and wherever may ultimately also start to have an impact on traditional reading habits. Whilst this cultural shift may take a generation to kick in, history may very likely see 2015 as the starting point.

{b}From Joanne Frears, Director. IP, Innovation, Technology, for Jeffrey Green Russell Limited{/b}

What will be new and interesting for lawyers in 2015?

Nearly a decade after the credit crunch, austerity and efficiency measures have reached their nadir and cannot be any more efficient. This will lead to a year of innovation. Cloud provision will continue to disrupt traditional supply and delivery models. Open source and virtual access become industry standard, permitting real financial clarity for businesses, who won’t have to contend with unexpected licence fees and claims. One insider at the Dell Cloud and Big Data Team told me unofficially he thinks Open Source could go either way for lawyers; some may have less inclination to litigate others may feel they have more to protect!

Projects like Open Stack continue to mature and cease to be a ‘problem looking for a solution’ (Ben Kepes, Forbes). Just like any five-year-old, OpenStack starts to find its place in the community, set itself goals and make its voice known. As it starts to imprint its personality on users, it will begin to create for users new expectations of its ability and potential.

Meanwhile, Crowdfunding will double and lawyers will work through the new regulatory regime whilst harking back to days spent learning the Companies Act and recalling how to deal with multiple minority shareholders equitably.

Retail transformation online will continue, as use among millennials surges. A fragmented landscape in terms of data protection is likely, with old school users guarding their data and the fully mobile digital generation preferring to enjoy the benefits of targeted marketing and native advertising across multiple buying platforms. The law in this area will continue to struggle to reflect these diametrically opposed views of data ‘protection’, which may lead rise of the personal data as a personal asset, sold by individuals to retailers in a quid pro quo approach.