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Eversheds TMT Quarterly Briefing (Q4 2016)

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TMT| Quarterly briefing

The right signals

November 2016

Welcome to the November edition of Eversheds’ Technology, Media and Telecoms briefing.

This quarter we cover key issues concerning software and copyright, data/system breaches, AI, as well as updates on the EC's e-commerce sector inquiry, Digital Single Market strategy and other reforms

As ever, we hope you find this briefing useful. If you have any feedback on the briefing or any ideas for events or comments generally, please do contact me at

Charlotte Walker-Osborn 
Partner, Head of Technology, Media and Telecoms Sector
+44 121 232 1220 

Software as a good, not a service  

In Software Incubator Ltd v Computer Associates UK Ltd [2016] EWHC 1587 (QB)software was held to be a “good” in the context of a commercial agency agreement. This meant that a software supplier was liable to pay damages, compensation and post-termination commission to its commercial agent following termination of the agency agreement.

Click here to read the full article

Success for software owners - ECJ confirms that it is copyright infringement to re-sell physical back-up copies of software to third parties  

The European Court of Justice (“ECJ”) held that it is copyright infringement to sell back-up copies of software. The court ruled that back-up copies may only be made by the person with the right to use the program, and solely for their own use. This is the case even if the purchaser of the back-up had previously bought a copy of the software that was later damaged, lost or destroyed.

Click here to read the full article

Is the workplace ready for wearable technology?

In this article, we consider the impact of wearable technology and the various challenges of integrating these into the workplace.

Click here to read the full article

Has embracing "Bring Your Own Device" ("BYOD") become inevitable?

In today’s ever-changing world, many businesses struggle to keep up with technology advances and employees’ increasingly prefer to use their own personal devices. Ubiquitous use of BYOD at work is a natural progression and increasing numbers of companies are now allowing employees to use personal devices to connect to corporate networks. However, comparatively few have implemented measures to mitigate against the security risks inherent in BYOD initiatives in the workplace.

Click here to read the full article

Eversheds training client sessions: Hassle-free ICT - Optimising success and reducing risk

In November and December, Eversheds TMT are holding a number of client training sessions applicable to buy-side and supply-side – CTOs, CIOs, directors and senior managers responsible for IT procurement, outsourcing or supply.

To find out more and book your place click here

Copyright Reform

Europe continues to push forward its Digital Single Market strategy with its latest proposals to modernise copyright laws.

Click here to read the full article

CJEU confirmed that hyperlinking could be 'Communication to the Public'

Since our previous article ‘Has there been a ‘communication to the public’ amounting to copyright infringement?’; the CJEU has delivered its judgement in GS Media v Sanoma Media Netherlands and Others (C-160/15), and while the outcome is undeniably fair based on the facts, the methodology used to arrive at such a decision does not provide the clarification sought by rights holders.

Click here to read the full article

The Communications (Access to Infrastructure) Regulations 2016 - Ofcom consults on its proposed guidance for handling disputes

On 26 July 2016, in accordance with the requirements of the Communications (Access to Infrastructure) Regulations 2016 (the “ATI Regulations”), Ofcom released a consultation setting out its proposed guidance on how it will handle disputes referred to it under the ATI Regulations (the “Draft Guidance“).

Click here to read the full article

Enforcement lessons learned from the record-breaking ICO fine issued against TalkTalk  

On 30 September 2016, the new Information Commissioner, Elizabeth Denham, flexed her regulatory muscle and issued a record breaking fine of £400,000 against telecoms giant TalkTalk Telecom Group plc (“TalkTalk”).

The fine related to the much publicised cyber attack suffered by the company between 15 and 21 October 2015, which resulted in the personal data of 156,959 customers being accessed.

Click here to read the full article

How is your DC arrangement governed?

This article summarises the main features of DC arrangements, and the ways in which they are regulated and governed, to help you understand what running your DC scheme involves.

Click here to read the full article

E-commerce sector inquiry: Commission signals new era of enforcement of 'vertical restraints'

On 15 September 2016, the European Commission published a preliminary report in its e-commerce sector inquiry. The Commission launched the sector inquiry in May 2015 amidst concerns that businesses may be seeking to restrict online sales with a view to limiting price competition and cross-border trade. This article examines the findings of the report.

Click here to read the full article

Who can we trust with our reputation?

In this article, we review the Financial Conduct Authority’s guidance for firms and views on the use of third parties and consider whether regulated firms are right to invest custody of their reputations with third parties, and if they do so, what controls should be in place.

Click here to read the full article

An agile approach - A flexible solution for outsourcing contracts

With technology developing so quickly, challenges are greater than ever. In today’s market, businesses need to be able to take advantage of the latest developments in technology immediately. Our new guide ‘An agile approach – A flexible solution for outsourcing contracts’ looks at why traditional outsourcing projects will struggle to cope with fast moving technological change and why an agile approach has the potential to deliver the flexibility that will allow outsourced services to adopt new technology as rapidly and efficiently as possible.

Click here to view the article and brochure

Digital Comparison Tools cross-sector market launched by CMA

On 29 September 2016, the CMA announced the launch of a market study into ‘Digital Comparison Tools’ (or ”DCTs”). The study will cover price comparison websites, smartphone apps and any other digital intermediary services which UK consumers can use to compare products between providers.

Click here to read the full article

Vicarious liability for data security breaches by employees

Axon v Ministry of Defence and News Group Newspapers Ltd [2016] EWHC 787 (QB). The High Court dismissed a claim for misuse of private information and breach of confidence brought by a former Commanding Officer of a Royal Navy frigate, against the Ministry of Defence where a fellow employee disclosed confidential information to The Sun. In doing so the court held that employers can be vicariously liable for data security breaches committed by their employees.

Click here to read the full article

Making Sense of Brexit - Survey. Your input needed

The result of the EU referendum left every business with questions as to the effect which Brexit will have on them both at home and abroad. Further, following the UK Government’s recent announcement that it intends to trigger Article 50 and begin the exit process by the end of March next year, these questions have been brought into even sharper focus.

In response we are conducting an online survey investigating some of the key business and legal issues around Brexit, and we would welcome your input. The survey focuses on a number of specific areas including business and legal planning, the nature of the UK’s future relationship with the EU and how business is responding to the opportunities and challenges now being faced.

The survey is aimed at senior legal and business decision makers and we would be very grateful if you could spare five to ten minutes to share your valuable insight with us by Wednesday 9th November.

Everyone who contributes to the survey will receive a full copy of the results later this year when we publish our report. Your participation will not only help to shape the content of the report but will also provide an opportunity to benchmark your Brexit planning and forecasts against other leading organisations.

Feel free to forward this survey to any colleagues that might also find it relevant.

Please note: This Survey is conducted in accordance with the UK's Market Research Society Code of Conduct. The information you provide will be used for analysis purposes only and responses will not be attributed to individuals or organisations. All responses will reviewed in strict confidence, with the results made available in aggregate form only.

Click to access the survey

To download the August Summer newsletter in PDF format please click here


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