Predictions 2013, and beyond: Part 6, A Practitioners’ and Academic Mix
Here are some remarkably sound predictions on the future of IT law and related fields from IT lawyers Jane Seager, Simon Deane-Johns, Richard Graham and Toby Headdon and, from the academic world, Monica Horten and Marion Oswald, plus a stimulating suggestion for how SCL might change from regular contributor Alastair Morrison.
From Richard Graham, Partner, Technology, Media & Telecommunications, Edwards Wildman Palmer UK LLP
2013, the Second 'Screen' World War
2013 will see a new global battle commence as tablet manufacturers, app developers, content providers and broadcasters look set to compete for control of our second screens. These platforms have been developed to allow viewers to interact with traditional broadcast content using their mobile devices or tablets. There is no doubt that the successful second screen platforms will be able to command significant revenue from advertisers as the 'Big Data' derived from the platforms provide further insight into user purchasing behaviour. Not only will there be contractual and intellectual property issues arising out of these relatively new platforms, technology lawyers will face regulatory challenges as they grapple with data protection and privacy issues, advertising law, competition law and broadcast rules and regulations.
From Marion Oswald, Solicitor and Senior Lecturer, Centre for Information Rights, University of Winchester firstname.lastname@example.org
In the light of the Winterbourne View and child sex abuse scandals, there will be pressure to re-think the way that personal data is shared. Law and policy should reinforce sharing for the public good, and avoid ‘lock down’ of information resources. Of course, it’s all very well sharing, but if no-one makes effective use of the data, then there’s little point. Connections have to be made to ensure that the vulnerable are protected, and intelligent IT can underpin this.
Questions will be raised about proactive release of anonymised datasets under the government’s Open Data agenda. What if the ‘wrong’ field is anonymised? If a request is made for the same dataset with the previously anonymised field disclosed (for research purposes for instance), then the re-identification risk created may make a subsequent release impossible.
From Simon Deane-Johns, consultant solicitor with Keystone Law, specialising in retail financial services, e-commerce and IT, and Chair of the SCL Media Board
The suppliers of energy, mobile phones, current accounts and credit cards will provide each of their consumer and small business customers with the records of what they bought, where and for how much. That transaction data will be released in computer-readable format to enable it to be analysed, either by the customer or the customer's authorised service provider. This will help prevent those suppliers from gaining an unfair pricing advantage over consumers, and make it easier for individual customers to figure out the products that are right for them personally.
There will be a simple set of common licences from which consumers can choose to govern the use of their personal data in any given context. Those licences will correlate to detailed statutory and contractual rights and duties. A ‘personal data mark-up language’ will enable anyone holding personal data to tag it with the permissions flowing from the licence given by the consumer.
Wave upon wave of technological development and data sharing on a vast scale will have fully democratised the means of producing our goods and services. As a result, we will have evolved beyond an obsession with our ‘rights’ and the resulting entitlement culture in which we cast ourselves as victims of our institutions. We will have realised that each of us bears responsibility for the wellbeing of everyone else and that the success or failure of our society depends on how each of us behaves personally. We will be conscious of the duties and obligations that each of us must perform to help ensure everyone else’s welfare. We will trust that performing those obligations is the best way to help ensure our own personal welfare. We will not expect the state or anyone else to perform these personal responsibilities for us, but merely to act as one of many facilitators for our endeavours. We will call this dynamic private and public network the “Personal State”.
From Jane Seager, Counsel, Hogan Lovells: email@example.com
Last year I predicted that the first round application window for new generic Top Level Domains (gTLDs) would be extended past the closing date of 12 April 2012 due to sheer demand by companies wishing to acquire .generic, .brand or .city TLDs. The closing date was in fact extended to 30 May 2012, but only as a result of an unfortunate data leakage problem. Nevertheless demand was high and my prediction that over 1,000 applications would be made certainly came true - in fact there were 1,930. However, the idea that the first new gTLDs would be in use by early 2013 proved rather too optimistic - the last quarter of 2013 is now looking more likely. How many new gTLDs will in fact be in use by the end of 2013? I would say at least 500, meaning the beginning of the end for the traditional dominance of .com on the internet and a radical shake up of the domain name world as we know it.
The rise of Internationalised domain names written entirely in non Latin script will mean that the Internet will have become a whole lot easier for non English speakers to navigate. However, the fact that English will no longer be necessary (even after the dot, as TLDs such as .com will have been replaced by their local script equivalents) means that there will no longer be an overarching common Internet language. Paradoxically, this may lead to increased separation amongst the various Internet communities.
The ‘global’ Internet will have disappeared as ICANN's unique but precarious historical position as the co-ordinator of the worldwide internet will have become unsustainable. One by one countries will break away and use alternative root servers, the end result being that the same web address may resolve to different web sites depending upon where the user is located. This will result in fragmentation, and the global Internet certainty that we now simply take for granted will be over.
From Dr Monica Horten, Visiting Fellow at the London School of Economics & Political Science and author of The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package: http://www.iptegrity.com
Copyright stalls four EU directives. That is, four directives, three of which have absolutely nothing to do with copyright, are stalled because of copyright issues. We can look forward to fun and games in Brussels as the political bunfights over the IPR enforcement directive and the E-commerce directive heat up. Next in line is copyright in the cloud – the forthcoming directive on cloud computing – which, rumour has it, is being serenaded by some not-so-sweet music. Lastly, there’s a new proposal to legislate on deep packet inspection. It’s an easy pick that music will be heard there too.
There will be an ongoing argument about copyright enforcement. After MegaUpload, expect a raft of high-profile cases in different jurisdictions. Watch legislators continue to struggle with this, as the increased public awareness limits their ability to act. Expect Google to fall into line with copyright industry expectations, and the openness of the Internet to shrink in line with Google’s new business model.
We will still be arguing about copyright. It will be almost 500 years since Queen Mary’s original charter, granting exclusive printing and distribution rights to the London Stationers Company and the ‘right to the copy’ was born. Ever since then, the history of copyright is littered with political battles and litigation, so why should we expect it to stop in the 21st century? If I am correct, many rock classics will be coming out of copyright under current law, and their original authors/performers will be dead. Cue lobbying for increased copyright term, and some serious challenges to the incumbents.
Other outcomes are also possible. Either the Internet will have killed all notion of copyright, forcing the poor authors to seek patronage as there is no other way to pay for creativity. Or, it will have been turned into a glorified television service with an upload facility and a link to the Inland Revenue.
From Toby Headdon, Senior Associate at Berwin Leighton Paisner LLP
Beyond social media and behind the ever-growing cloud, a perhaps more silent war is being waged over the control – and, typically, monetisation - of content over the Internet.
In February 2013, the UK Supreme Court hears the appeal in NLA & Others v Meltwater & Others – this concerns the extent to which the law permits temporary copies of copyright-protected content to be made within a computer and on a computer screen in the course of certain browsing activities. No doubt the search engines will have their eye on this one.
In Europe, only last month a Swedish Court in Nils Svensson & Others v Retreiver Sverige AB put questions to the CJEU, asking whether the provision of hyperlinks to copyright-protected works is a ‘communication to the public’ which the copyright owner is entitled to control. The same case also asks whether it matters that access to that copyright-protected content is restricted - this would typically be through either technical controls (such as pay walls) or legal controls (such as web site terms and conditions). Not long before that, an Austrian Court in UPC Telekable Wien sought clarity from the CJEU on whether injunctions are available against Internet access providers requiring them to prevent streaming of films made available without the right holder’s consent (on which see my predictions for 2012). This debate about the parameters of legal control of content and its dissemination online is still, surprisingly given its importance, a rather nascent one in the EU. I think that we are likely to see this debate advance quite a bit in 2013.
As for 2023 and beyond, perhaps by then Skynet will have replaced the Internet, the machines will have risen, SCL will have been replaced by the Society for Humans & Law and we will have to revive Arnold Schwarzenegger from a cryogenic state to save us all from the Apocalyptic future we face.
From Alastair Morrison, who works in IT at Strathclyde University, primarily involved with Exchange e-mail and SharePoint in-house
I noted with interest the comments about the society finally changing its name. The implication behind this is, perhaps, that whereas in its early days the emphasis of the society was more on computer applications, it is now firmly on the application of law to IT, and the name of the society should reflect this.
My prediction is that the focus of the society will move back towards the technology per se (though maybe with a slightly different techno stress than in those early days). This will not be noticeable in 2013, it will be clearly perceptible by 2023, and the balance should be restored by 2053.
My Reasoning? Technologies are rapidly evolving. Nothing is going to stop this. They will feed off each other and lead to other technologies, as yet not conceived. The results will affect all aspects of our lives, personal and professional.
Heard it all before? Possibly, but Cambridge University's recent announcement lends weight to the view that all professionals, in whatever sphere, really do need to start paying more attention now to what technology will be doing for us (or maybe that should be to us) in the future. The University has declared that the 'existential' threat to humanity from AI, biotechnology, nanotechnology, artificial life, etc. is serious; so serious in fact that the University is creating a Centre for the study of Existential Risk (CSER) to keep an eye on it.
Now you might be tempted to scoff at, or even ridicule, this idea but even if you do not believe that the level of technological sophistication that the Cambridge project envisages will ever be up to the task of annihilation the following at least should be considered.
We already have The Internet of Things and general machine-to-machine communication hovering on the horizon (hopefully they are on the CSER checklist). These are poised to give us a hand at home and at work (whether we like it or not). Therefore it should not unduly stretch our imaginations to surmise that the radically advanced technologies that the Cambridge project anticipates will, at the very least, be capable of spawning something practical enough to do a few more jobs around the office (wherever or whatever that office might be) and maybe replace some of those people who do them.
Thus the SCL will increasingly find itself monitoring, examining and commenting on various technologies and how they should be regulated, while also reviewing applications produced from them that affect the practice and administration of law.
Eventually, of course, the society will have to become a little less altruistic and a little more self-interested as it focuses on the particular threat to lawyers and legal jobs that robotic colleagues will pose. However, at least if it transpires that this specific threat cannot be resisted a name change, if not an acronym change, will be justified - Society for Cyborgs at Law anyone?