Predictions 2015: (Mainly) IT Law

December 31, 2014

From Kit Burden, Partner at DLA Piper LLP and Global Co-Head of the Technology Sector there. Kit is a noted outsourcing expert and joint author of Morgan and Burden on IT Contracts (Sweet & Maxwell)

We will see the continued growth of the tech community centred around – but increasingly diversifying away from – Silicon Roundabout and the area known as Tech City, but they will still lag behind Silicon Valley in terms of focus from the global VC community. Cloud solutions will continue to gain traction but will also increasingly fall under the eye of regulators, including as to some of the contract terms that the main providers seek to work under.

Data and cyber security will continue to adorn the top of the list of issues keeping CIO’s awake at night, and will likewise dominate the thoughts of compliance teams, especially if the new Data Protection Regulation emerges in anything like the form that has been mooted. Outsourcing continues, but with an increasing focus on the role of the retained organisation and an appreciation of the impact of the loss of ‘formative’ job roles for more junior staff.

From Paul Gershlick, a Commercial/IP/IT Partner at Matthew Arnold & Baldwin LLP with a particular interest in the application of technology to the life sciences and healthcare sector.

The next few years will see the exponential growth in the take-up of healthcare apps and wearables, measuring pulse, blood pressure, weight, glucose levels, breathing activity and more. People’s obsessions with lifestyle will morph into real healthcare benefits. With key questions around data security and who to trust with the data, we will see the emergence of trusted not-for-profit third parties who store the data with the highest standards and provide access to that data to people authorised by the patients.

From John Halton, who is a senior legal counsel at the Financial Times (though writing here in his personal capacity). He blogs at and tweets as @johnhalton.  

‘Always different, always the same,’ was how John Peel described legendary post-punk band, The Fall. Much the same can be said of how copyright law will look in 2015.  

For many, it may feel like only the first two words of that statement – ‘always different’ – are true at the moment. 2014 saw some major developments in copyright law, including the new UK copyright exceptions and the important CJEU decisions on internet-related copyright issues such as linking (Svensson), embedding (BestWater) and caching (Meltwater). 2015 will see all the main copyright stakeholders – owners, creators, users – working out how to navigate the new landscape. 

Content creators will be keen to push the new exceptions on quotation and parody as far as possible, while owners will be looking for ways to prevent this from turning into a ‘fair use’ free-for-all. A similar tussle is likely over the data-mining exception, as researchers look to make maximum use of this (and to test the boundaries of what is ‘non-commercial research’) and content owners try to find ways to manage this, perhaps through licensing models. Will the movie industry challenge the private copying exception, as they have threatened? Will the seemingly innocuous decisions on linking, embedding and caching have unintended consequences that weaken copyright more than the CJEU anticipated? Meanwhile, all eyes will be on the new European Commission, which has made further copyright reform one of its main priorities for the next five years.  

However, despite all this, fundamentally copyright will remain ‘always the same’: it will still be a key protection for content owners and creators, and predictions of apocalyptic consequences for creative industries (who have been predicting their own demise at the hands of technology and weakened copyright laws since the invention of the video recorder) will remain unfulfilled. 

From Jon Baines, Chairman, NADPO (National Association of Data Protection and Freedom of Information Officers) 

My predictions for 2015 focus on ePrivacy law and Data Protection.  

Regarding the former, I predict that (in line with proposals in the current DCMS consultation) the ‘harm threshhold’ for the serving of Monetary Penalty Notices for serious contraventions of the Privacy and Electronic Communications Regulations will be significantly lowered or even removed. This will result in a major and surprisingly effective campaign by the Information Commissioner against spam calls, texts and emails.  

Regarding the latter, to be honest I’ve grown rather tired of wrongly predicting when the European General Data Protection Regulation will be finalised. However, I think early 2015, the target of Jean-Claude Juncker is too optimistic. Late 2015 is perhaps more likely, and I predict that, ultimately, its aim of pan-European harmonisation will be negated by carve-outs, caveats and the adoption of risk-based approaches to compliance and enforcement. 

From Justin Dear, Head of Online News Desk (Asia-Pacific) for Agence France-Presse 

I predict there will a growing battle within the courts between freedom of expression and human rights and moves by the government to prevent recruitment of jihadists through social media. David Cameron recently told a press conference ‘We must not allow the Internet to be an ungoverned space,’ adding there was a role in this for both government and companies: ‘In the UK we are pushing companies to do more, including strengthening filters, improving reporting mechanisms and being more proactive in taking down this harmful material.’ (Quotes courtesy of AFP). 

From Andrew Katz, Partner, Moorcrofts LLP

A consortium of patent holders will lobby for a repeal of s 60(5)(a) of the Patents Act – which provides for a defence of patent infringement in a non-commercial private context. Patent holders will worry about people using 3D printers to make patented inventions without liability. 

There will be more revelations of bugs in open source software, like Heartbleed. These will be fixed more quickly than the equivalent bugs in proprietary software, but they will prompt (dubious) assertions from proprietary software companies about the security of open source code. This will prompt more and better-funded open source foundations, as large companies realise that well-funded foundations are a vital component in their business ecosystem. 

The security services will continue to assert that it’s possible to have a magic key to encrypted materials which they alone can access, and which is immune from exploitation by bad actors. 

U2 will start breaking into people’s houses to play them their latest album, and Bono will wonder why this is not a popular thing to do. 

From Mark Kenrick, Partner, Marks & Clerk LLP

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. 

From Matt James, Director, Eccomplished – the retail technology accelerator: 

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. 

From Jane Seager, Counsel, Hogan Lovells: 

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. 

From Joanne Frears, Director. IP, Innovation, Technology, for Jeffrey Green Russell Limited 

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 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.  

From Mark Weston, Partner, Commercial / IP / IT at Matthew Arnold & Baldwin LLP 

I make one prediction only: During 2015, the Trustees of SCL, will change the name from the ‘Society of Computers & Law’ to the ‘Society of Technology & Law’ (or STL).