Category: Protection

Introduction:

Consumerism and Consumer Protection Act is one of the most essential methods for any business for the protection and promotion of the interest of the consumers. Today in this 21st century, many countries around the world are in the stages faster developing process, and that leads to many innovations of entrepreneurship for better business ideas. With the growth of many businesses around the globe, it leads to important for customers and owner to protect from unfair trade and other illegal business on them. Therefore, it is important for ever people to know and understand about the consumerism and consumer protection act of their country and the whole around the globe.

Consumerism is the idea that generates consumption of goods and services purchased in the market are always an important goal and that a customer’s wellbeing and happiness depends fundamentally on obtaining consumer goods and material possessions. Consumerism is a protest of consumer against unfair trade practices and business injustices. However, Consumers’ consciousness determines the effectiveness of consumerism. It is the duty of the consumer to identify his rights and to protect them. Therefore, the success of consumerism lies in the realization of the organization that there is no substitute for voluntary self-regulation for purchase of the products.

Consumer protection is one of the emerging issues in today’s fast-developing materialistic world. The cases that are heard without consumer protection are of adulteration, sale, and supply of substandard goods, black marketing, etc. posing risks to the health and safety of the consumers around the globe. However, with the help of this consumer protection, this will enable them to make best choices based on the interests and prevent them from being misled by business. So, with proper instruct of the consumer protect it will generate profitability and competitiveness which will also lead to growth of the business for long run.

Therefore, every country in the world has own act against consumer protection. In our country, Consumer Protection Act was enacted in 2012 to protect consumers from unfair trade practices, false and misleading advertising, market abuses, and provide legal rights, and remedies in the consumption of products and services. In order to enforce the act, the Office of Consumer Protection (OCP) was established in 2014 under Ministry of Economic Affairs and is located in the ministry’s compound. Therefore, it is important to know and understand the consumer protection within and around the globe, so our group has discussed on the world consumerism practices and also difference in consumer protection acts in different countries.

Consumerism Practices

Consumerism is the protection of the consumer rights and interest. It protects the buyers or the customers while buying or seeking services so that they can consume any goods or services in a very fair and just way and

Consumerism in the world

It is extremely difficult for the single nation to produce all the goods and services that the citizens desire for, which calls for trade with other nations. There are so many positive as well as negative impact of external trade or globalization. Consumers are now participants in a global market and possibly in a cyber-market. These customers can only be protected through rules which are essentially national, and which can only be enforced within national frameworks.

Consumer protection law

It is considered as an area of the public law that regulates the private relationship between the individual customer and the business. It is an act to protect the economic interest and safety of the consumers and ensure that better consumer products and services are offered to the customer so that there are no economic harm and no harm in the products which may cause health treats.

Following are the different consumer protection acts framed in different countries:

United States

The US Federal Trade Commission (FTC) is the main federal agency enforcing consumer protection laws and promoting competition. The FTC works for consumers to prevent fraudulent, deceptive and unfair business practices with traditional areas of practices concerning financial

Products and practices, telemarketing fraud, unfair or deceptive advertising and marketing practices and raise health and safety concerns, as well as those that cause economic injury. Recent priorities include customer data privacy and information security, credit reporting, identity theft and internet of things.

Germany

The federal republic of Germany is a member state of European Union and is bound by the consumer protection boundaries. When issuing public warnings about products and services, the issuing authority has to take into account that this affects the constitutionally protected economic liberty (article 12).

United Kingdom

The consumer protection act 1987 gives customers the right to claim compensation against the producer of a defective product if it has caused damage, death or personal injury. The act also contains a strict liability test for defective products in UK law making the producer of the product automatically liable for any damaged caused.

Singapore

The consumer protection (Fair trading) Act (CPTFA) is a law protecting consumers in Singapore. The CPFTA applies to most consumer transactions but does not apply to sales of land and houses, employment contracts and pawnbroking. CPFTA was primarily formulated to protect the consumers against unfair practices and to give consumer additional rights in respect of goods that do not conform to contract.

Australia

The Australian consumer law sets out consumer rights that are called consumer guarantees. These includes the consumers right to a repair, replacement or refund as well as compensation for damages and loss and being able to cancel a faulty service.

Following are the ways in which consumers were exploited in different countries and how the consumer protection act played its role.

The consumers are usually exploited by the seller by charging a very high or unreasonable price for the product, the seller sometimes sell expired products to the consumer which sometimes have a dangerous impact on the health of the buyer, they sometimes sell low-quality goods and most of the tie the consumers are exploited by giving false information or fake advertisement about the product. False advertisement takes place when the seller gives false information about the product or the services to the customer which leads to the consumers taking part in the trade practices. One such example is that of red bull company. A red bull company made an advertisement stating that their drink gives wings and can improve the concentration and reaction speed. The company was sued by the number of red bull drinkers, one of them said he had been drinking the product since 2002 but had seen no improvement in his athletic performance neither did it give him wings, because of which the company had to pay out more than 13 million dollars after settling a US class-action lawsuit. In japan, Chinese eel which was a residual agricultural chemical was sold as a domestic product; the expired sweets and the leftovers were sold and served as a fresh one. With the reform in the consumer protection act in April 2001 the consumers were able to sue the businesses with the unfair trade practices, where the company was made to pay monetary penalty to the respective customers. On March 29 of 2016, the Volkswagen had to pay out up to 60 billion dollars for the false advertising they have made. The company deceived the customer with the advertising campaign “clean diesel” vehicles which was later exposed the VW had been cheating emissions tests on its diesel cars in the US for the past seven years.

Consumerism practice in Bhutan

Consumer are exploring towards different products which is sold by the markets. Marketers are trying their best to attract the consumers towards it by using different techniques such as market abuses and exploitations by corrupted traders, manufacturers, and service provider for quick profits. In that case governments are helping to eliminate this kind of practices in order to ensure rights, safety, and access to exact market information of the consumers. So government had come up with method which is consumer protection act which is introduced in 2012 on the 16th January 2012. The office officially came in to existence in Feb 2014. The main reason behind coming up with these kind of method is to protect and promote economic interest and safety of the consumers. Before many people were not aware about Office of consumer protection but today when they face problem it is directly reported to them. It had mentioned that our country is at risk from mindless growth and western consumerism. As many of the consumers are copying the lifestyle of western culture so in that cases the demand for the products are increasing which gives pressure for the manufacture to produce more of those particular products. It is obvious that traders will try to use the resources which indirectly have impacts on environment and social interconnection.

In Bhutan most of the people are not able to do the business up to the level of other countries as they are importing almost every product from outside countries. As we know that consumers are the most precious for the marketers as they solely depends on them. Without which marketers cannot survive and they are trying everything in order to attract the consumers towards it. It has been found that developing consciousness among the public around disputes such as fair trade, environmental friendliness and corporate social responsibility. In case consumers were provided with the false information regarding the products then they have right to return that product to particular marketers. Consumer can search the information on goods and services from the social media which helps them to avoid getting reimbursement against unfair trade practices and fraudulent exploitation of consumers. For example; Marketers are bringing the products from the Bangkok, so consumer has the notion that the products in Bangkok are very expensive as well as good quality one. That’s why marketers are trying to purchase the cheapest product from the Bangkok which they sell it at very high price. These types of practice are still going on within the country. That is why office of consumer protection should look into these types of cases.

Today, due to the lockdown many marketers have to go through unbearable challenges which they never thought of before. They are not able to sell the products which are demanded by the consumers. Those products are not produced within the country which they lend up increasing the price of remaining products. They are not able to make the profits as consumers are seen rarely in the markets. E.g.: as we know that sanitizer and masks play vital role in this pandemic situations as it has become essential for all the people in order to avoid the disease that is why a mass of people was seen rushing for face masks, hand sanitizers after the approval on the first COVID-19 case on 6th March. Because of increasing the demand of the product, marketers are trying to act smart by increasing the price of the product. In these case consumers protection agencies are involved in solving the issues. As we can see that many of the consumers fall victim to adulteration and high prices, poor quality of products, and black marketing among many similar other issues imposed by traders, manufacturers, and service providers in the country, so they responsible for looking into such grievances from the countries. The Office of Consumer Protection also asked businesses not to raise prices or take advantage of the situation and display price tags. Consumers are asked to inform to the Office of consumer protection if the marketers are against the rules so that they can cancel the business licenses among other actions.

Say/opinion on Consumerism and Consumers Protection Act in Bhutan

Firstly, the consumerism can have both positive effect as well as negative effective to the consumers’ and the country as a whole. With regard to the consumerism, our group felt that consumerism will be bad to the consumers and the country as a whole in the long run. It will lead to environmental degradation because when peoples’ demand increases, there will be pressure on the natural environment like pollution, depletion of resources and more waste which may even affect the health of the people as well as the other living beings. For example, when people demand more of a product, there will be more production which will lead to pollution and as a result the natural environment gets affected. In addition, it will even affect moral of the people like relationship, honesty and not judging others and so on. For example, one person may try to be more superior or of higher standard than others and some will also try to be even more superior. This will lead to jealousy among the people in the society and lead to more problems as their focus will be more on materialistic. Furthermore, people might even increase their debt and save less as they will be focusing on purchasing of different varieties of product. Some might even borrow more from others and financial institutions to buy luxury products to have a high standard of living which may lead to improper investment and not able to pay back the borrowed amounts. When there is improper investments and when they are not able to pay back the borrowed amounts, this may lead to mental problems like tension, stress and even depression. As a result, they might even have to work harder and lose their close relationships with their friends, families and the loved ones.

Secondly, with regard to the consumers protection act in Bhutan, it can have more advantages to the consumers and at the same time it can guide the producers and suppliers in doing an ethical business to the society. The consumers can always keep themselves informed and make proper decisions while buying. In addition, they can even ask for receipts while buying anything and also seek clarification if they have doubt about the prices of the products. They can even complain and seek for compensation if there is unfair trade practiced by the producers through the office of the consumer protection unit. On the other, the producers and the suppliers can always provide authentic information to the consumers regarding the products sold in the market and always go on with the fair trade practices to avoid compliances compensation from the consumers. Therefore, as there is an act on consumer protection, both the consumers and producers will be aware of what they are doing and will make better use of their own rights to have a fair trade practices all around the country.

Conclusion

With the completion of this assignment, we have found out how important to know and understand the concept of consumerism and consumer protection for the consumers to been in the safer side of the business world. After going through many scenario of the world consumer practices and also the different consumer protection act of other countries, we have come out many benefits for the consumers and business for better profitable and long run succession. We have seen what are the problem face be the consumer exploitation like prices, adulteration, duplicate, product risk, and etc. And also we have come to know more about needs of consumer protection such as protection of the consumer against deceptive and unfair trade practices, ecological and environmental effects of chemical and adequate protection of consumer against the abuse of monopoly positions of the consumers. In addition, we have come to know more about rights and the responsibilities of services provider, manufacture and supplier of goods of our country and other countries that we have studies on the consumer protection act.

Now we are much aware of the act towards consumer protection and its consumerism of our country and other countries too. Our group has come to gain knowledge more about the cases of adulteration, sale and supply of substandard goods, black marketing etc. and also the risks towards health and safety of the consumers. Therefore, I concluded that consumer protection is one of the most important tools for the consumers and the business owners to understand the concept and follow as per the act that is suitable for everyone. So lastly, we the group number eight had enjoyed a lot by doing our assignment and also learned that how important consumer protection for everyone.

Reference

1. Bhutan at risk from mindless growth and western consumerism. (2014, May 19). Retrieved from https://www.theguardian.com
2. Consumer protection in Singapore: unfair sales practices. (2018, November 22). Retrieved from https://singaporelegaladvice.com/law-articles/unfair-sale-practices-cooling-periods-right-cancel-contracts-consumer-protection-fair-trading-act/
3. Consumer Protection Act 1987. (n.d.). Retrieved from https://www.which.co.uk/consumer-rights/regulation/consumer-protection-act-1987
4. Consumer rights and quarantees. (n.d.). Retrieved from https://www.accc.gov.au/consumers/ consumer-rights-guarantees
5. Delhi/NCR, M. c. (n.d.). Consumerism in the globalized world. Retrieved from http://www.legalserviceindia.com/article/175-consumerism-in-the-GlobaliLLP-world.html
6. LLp, K. D. (n.d.). Consumer protection law in the united states. Retrieved from https://www.bestlawyers.com/methodology/practice-areas/united states/consumer-protection-law
7. Scott, M. (2017, 04 24). What you need to know about consumerism. Retrieved from https://swiftmoney.com/blog/what-you-need-to-know-about-consumerism/

Analyze & evaluate the impact of Brompton v Get2Get to the currently copyright system

Copyright arises automatically to the creator of an original work as soon as the work is created. The classic copyright protection generally runs before the ink is dry up to 70 years after the death of the author; it covers creators’ original literary, dramatic, musical, and artistic (LDMA) works. Moreover, the area of law in the modern days has been greatly expanded and reacted relatively to the influence of technology. This allows new aspects of artistic works including films, sound recordings, published editions, broadcasts, and cablecasts which are known as entrepreneurial copyrights to be protected under copyright law. Yet, the lack of statutory development of copyright law in the United Kingdom (UK) may have lost confidence amongst creators and created legal controversy: the sufficiency of protection and the clarity on its availability. Critics of current copyright law point to many expansions in its power over the past decade. In the recent ruling of a copyright infringement proceeding Brompton Bicycle Ltd (Brompton) v Chedech / Get2Get (Get2Get), the Court of Justice of the European Union (CJEU) sets forth a foundation for new opportunities for copyright protection in Europe. The CJEU’s decision suggests copyright protection will be available in products even with minor creative choices of the creator.

Case conclusion

In Brompton v Get2Get, the CJEU held that copyright protection should not be available to designs where the shape of the design is necessary by the technical function as advised by Advocate General (AG) Manuel Campos Sánchez-Bordona. It is emphasised that copyright protection should be a result of the creativity of the creators’ ideas and not the ideas themselves.

This case involves the UK Company Brompton taking a Korean company Get2Get to court for copyright infringement of a similar folding bike. Brompton protected its bicycle and particularly its folding system under the patent system after its invention. However, the folding system entered the public domain following expiry of the patent in 1999. After the patent expired, Get2Get began to sell similar folding bikes in Belgium. Brompton attempted to protect the Intellectual Property rights (IPR) of its folding bikes by suing Get2Get for copyright infringement. Get2Get countered that their Chedech bike adopted Brompton’s folding technique as it was “the most functional method”. The fundamentally question raised here was whether the shape of the bicycle was necessary in order for it to be foldable.

This is not the first time Brompton has tried to protect its bike in court. The originality of the Brompton bike has been a subject of various court decisions. Previously in the Decision 41/2010, although Brompton’s patent had never been validated in Spain, the Madrid Commercial Court no. 5 upheld the copyright for Brompton and ruled that the aesthetic shape of the bicycle was not determined by the technical functions of folding and compactness. The Brompton’s bike was protected under the copyright system in accordance with Article 10 of the Spanish Copyright Act.

The Belgian court was put into a similar situation faced by the Spanish Commercial Court in Brompton. The Belgian court needs to determine whether the Brompton bike is entitled to copyright protection under the applicable national law implemented based on Directive 2001/29/EC. Where Member States of the European Union (EU) has doubts on interpretation of EU legislation, they may ask for preliminary ruling to the CJEU even though it does not have jurisdiction.

In June 2018, the Belgian court referred the following questions to the CJEU for a preliminary ruling:

1. 1. In regards to Articles 2 to 5 of Directive 2001/29/EC, whether the exclusive rights granted to copyright creators exclude protection of “works whose shape is necessary to achieve a technical result”;
2. 2. “In order to assess whether a shape is necessary to achieve a technical result, must account be taken of the following criteria:

• The existence of other possible shapes which allow the same technical result to be achieved?
• The effectiveness of the shape in achieving that result?
• The intention of the alleged infringer to achieve that result?
• The existence of an earlier, now expired, patent on the process for achieving the technical result sought?”

In regards to question one, the AG confirms that “designs whose shape is dictated by technical considerations that leave no room for creative freedom are not eligible for copyright protection”. Therefore, copyright protection does not arise for the Brompton design. Secondly (i) the expired patent may serve to explain that there were technical constraints imposed on the shape of the product; (ii) copyright protection does not subsist to designs where the shape of the designs is “exclusively dictated” by their technical function (reference to DOCERAM); (iii) the intention of achieving a technical result can be assessed when evaluating the relationship between the shape and function; and (iv) the criteria for assessing the relationship of exclusivity between the appearance of the product and its technical result are not exhausted to the analyzed in the AG opinion. The AG concluded that it would not be appropriate to make a criteria list when the assessment is in relation to circumstances which are not possible to recognize a priori.

The decision in Brompton is based on the copyright protection requirements in the InfoSoc Directive 2001/29/EC. Under the InfoSoc Directive, a work is entitled to copyright protection if it is original and has been expressed or recorded in some form. In other words, certain products will have cumulative protection under different IPRs. Ultimately the CJEU held that it is necessary for the shape of the Brompton bike to obtain its technical result. Copyright protection will not cover products whose shape is solely dictated by its technical function. However, the CJEU emphasis that products whose shape is necessary to obtain a technical result may be protected by copyright if the “product is an original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality”. This suggests that the area of law has evolved again and by setting a lower threshold, it means copyright protection will be available in products which result from the creator’s minor creative choices.

In reaching such decision, the CJEU has reviewed earlier case law, in Cofemel, the question posed by the Portuguese Supreme Court was whether EU law Article 2(a) of the InfoSoc Directive prevents Member States from granting copying right protection to designs subject to requirements other than originality. In Cofemel the CJEU moved from the concept of ‘work’ in Article 2(a) and explained that like all those concepts that do not refer to in national laws of the Member States, the “concept must normally be given an autonomous and uniform interpretation throughout the European Union”. In answering the question, the CJEU referred to both Infopaq and Levola Hengelo and confirmed copyright protection arises when (i) the work is original “in the sense of being the author’s own intellectual creation” from the author’s “free and creative” choices; and (ii) the author’s creation is expressed in an objective manner (clarified in Levola Hengelo). The Cofemel judgment is another landmark precedent of the CJEU rulings for products protected by copyright. The judgment brings evolution that copyright protection arises automatically upon fulfillment of the originality test. Yet this diminishes the traditional approach of national laws in Member States, like in the UK where copyright protection also depends on the category which the work belongs to as listed within the national law. The judgment in Cofemel would have meant that the approaches adopted by the UK statute and courts will need to be reconsidered.

In Brompton, the fundamental question was raised as to determine copyright protection for a functional product. The preliminary ruling handed down by the CJEU is in line with the AG’s opinion. This new precedent in EU case law limits the extend of copyright protection offered to functional products. This decision is significant for creators whose patents or design rights have expired, as their rights to rely on copyright protection to pursue for infringement claims are now diminished. It is clear from the recent CJEU decisions that copyright protection in the EU has moved forward. The CJEU has now pointed out the existence of copyright protection should “existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation of the product” including any previous protection of the product under other IPRs. The CJEU’s decision builds up to the EU case law precedents but often the CJEU leaves a great deal of freedom for national courts to assess the limitations on a case-by-case basis.

Copyright in the UK

Reflecting on copyright law in the UK, the framework of copyright law is governed by the Copyright, Designs, and Patents Act 1988 (CDPA 1988). Under the CDPA 1988, copyright only subsists works that are ‘original’ (s.1(1)(a)). The requirement of originality for the work is relatively minimal, and therefore it is significant for the court to imply a balance whilst granting a copyright. The classic case of Walter v Lane (1900) brings forward the notion of originality: ‘originality’ refers to work which must be the author’s own work which is not copied. The court held that the reporters were authors under the Copyright Act 1842 in regards the originality as the product of one person’s effort, skill, and time. In Lord Brampton’s view, he places ‘preparation [of the reports] involved considerable intellectual skill and brain labour beyond the mere mechanical operation of writing’.

On close examination, the current UK provision does not require a high degree of inventiveness. The CJEU suggests, following the case Infopaq International A/S v Danske Dagblades ForenigI, that the interpretation of originality in the UK should be slightly reshaped and harmonized with the European test. In addition to meeting the originality threshold, copyright cannot only be ideas and content. To be subject to protection, the idea needs to be expressed in a physical form which the work can be reproduced and communicated; “a production which is solely dictated by its technical function does not embed the modicum of creativity and individuality required to be original”. The CDPA 1988 indicates that a work must fall into one of the categories listed in the act in order to qualify for copyright protection. As soon as the creator merits copyright protection, under s.12 of CDPA 1988, the duration of copyright starts as soon as the work is created. For artistic work, the duration is usually 70 years in addition to the life of the author or director which runs from the end of the year of the death. For music recording, the period of 70 years runs from the year of creation or the year of first publication, whichever is later. For computer-generated work, the protection period is 50 years from creation. Copyright only lasts for 25 years for layout of published edition of written or musical works.

Being a former member state of the EU, EU copyright law, therefore, has the principle of mutual recognition by the UK legislation. The CDPA 1988 is also influenced by the EU copyright law implemented through a number of EU directives and related case laws. The opinion of AG in Brompton has produced a considerable impact on the copyright law in the EU and within the UK. Following the 2016 Brexit, the withdrawal agreement provides a transition period during which the EU Law, with only a few exceptions, will continue to apply and influence in the UK as if it was still a member state in the European Union, during this period until 31 December 2020. After 2020, the European Communities Act 1972 will fall away and any indirect EU laws will lose its statutory instruments on directly implementing on the UK national law.

In relation to the protection under IPRs, the UK legal system has always seek to strike a balance to ensure and provide a safe environment for creators to create as the same time offering protection against possible infringements to their works. As copyright offers protection to creators automatically, it avoids illegal exploitations of works which creators have created. But at the same time, copyright only protects the expression of ideas rather than the ideas themselves which will keep the market competitive. Creators obtain copyright protection automatically when the work was created and in most cases lasts 70 years from the death of the creator. As a result, it remains to be seen how copyright law in the UK will resolve the apparent conflict with the InfoSoc Directive and whether the Brompton case will have any influence to future UK court decisions and statutory developments in copyright law.

Comments about change

In the UK, the originality threshold has been low as the law only provides the definition within statute but there is no test to assess specific criteria for the concept. Therefore, being a former member state of the EU, the UK copyright law has been relied on the EU’s originality threshold. It is questionable that whether the CJEU ruling in Brompton has raised the threshold of originality for copyright: although the originality test is the only test which needs to be satisfied, neither the AG opinion nor the CJEU ruling went into details of defining the specific criteria for assessing originality. This in turn creates burden on both EU and national courts in the future as it is crucial for judges to review and assess cases individually. Given that at the end of 2020, EU case laws should no longer have precedential affect in the decisions of UK cases. We shall wait to see the future developments in the UK copyright law and whether there will be a seminal change to the statutory definition of “originality”.

Another essential development Brompton has brought to light is that previous protection of a product under other IPRs does not affect the analysis of whether the product will be protected under copyright. Each case in relation to any copyright infringements should be decided on its own. These changes demonstrate to creators and designers that the precedent in copyright law has now eliminate potential excessive accumulation of protection under different IPRs. Brompton’s decision to a certain extend answers the ‘real question’ of creators: whether they will be protected. Creators who might have their products protected under other IPRs which now have expired will need to consider carefully whether their works are protected under copyright. As a result, this shall create competition in the market, as it successfully indicates to creators that if a functional product is not protected under copyright when its other IPRs expired, that functional design will enter public domain and offer opportunities for other creators in similar areas to developer similar products that is more competitive in the market.

With Brexit on the horizon, we should expect the influence of EU case law to be undermined in UK courts slowly in the soon future. Even if the current manifestation of the UK Copyright seems to be in conflict with the Directive and precedence of EU law, neither has a clear definition of the specific criteria for assessing ‘originality’, the test classified as the only test that needs to be satisfied when assessing whether a work should be offered copyright protection. In addition, we will also hope to see clear amendments to the list of works that could be classed as under protection of UK copyright law to have a statutory advancement after departing from the EU. In the meantime, we can be sure to say the UK has strike a balance between offering unregister IPRs protection to creative works and cumulative protection to registered works in order to create a competitive environment in the market for creators to create. However, whether copyright law in the UK will be overhauled that seems a long way to go.

Conclusion the impact of Brompton v Get2Get to the currently copyright system

In Cofemal it was held originality of work is the main assessment when deciding whether copyright protection is available to the work. The views of the CJEU and its AG in Brompton highlight that the creator’s intention should also be considered in the assessment. We will have to wait and see how UK courts will interpret the decisions, especially with Brexit in place.

The CJEU rulings in the last few years also specific that Copyright could be available to a product in accumulation of other IPRs, offering somewhat a wider protection under IP to creators whose registered IPRs of their works have expired.

Another controversial idea between the CJEU’s decision in Brompton and the UK copyright law is that the CJEU has demonstrated that works can be entitiled to copyright protection under EU law without the need to fall into specific categories of works like in the UK law. Creators will be thried to see UK adapting such changes and expanding protection under copyright to more works as the term of protection by Copyright is much longer than other IPRs.In the light of hope, creators can see a gradual shift in the UK of what could be classed as ‘classic’ LDMA and entrepreneurial copyrights.

References

1. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU: C:2020:461
2. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU:C:2020:461, para 38
3. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU:C:2020:461, para 26
4. Decision 41/2010 of 10 February, Madrid Commercial Court no. 5
5. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU:C:2020:79, Opinion of AG M. Campos Sánchez-Bordona, para 28
6. ibid para 67
7. ibid para 81
8. Case C‑395/16, DOCERAM GmbH v CeramTec GmbH EU:C:2017:779 ECLI:EU:C:2017:779, Opinion of AG Saugmandsgaard Øe
9. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU:C:2020:79, Opinion of AG M. Campos Sánchez-Bordona, para 90
10. ibid para 99
11. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU:C:2020:461, para 29
12. ibid para 33
13. ibid para 38
14. Case C‑683/17 Cofemel — Sociedade de Vestuário SA v G-Star Raw CV, ECLI:EU:C:2019:721
15. Case C‑683/17 Cofemel — Sociedade de Vestuário SA v G-Star Raw CV, ECLI:EU:C:2019:721, para 29
16. Case C‑310/17 Levola Hengelo BV v Smilde Foods BV, ECLI:EU:C:2018:899, para 33
17. C-5/08 Infopaq International A/S v Danske Dagblades Forening, ECLI:EU:C:2009:465
18. Case C‑310/17 Levola Hengelo BV v Smilde Foods BV, ECLI:EU:C:2018:899
19. Case C‑683/17 Cofemel — Sociedade de Vestuário SA v G-Star Raw CV, ECLI:EU:C:2019:721, para 29
20. Case C‑683/17 Cofemel — Sociedade de Vestuário SA v G-Star Raw CV, ECLI:EU:C:2019:721, para 30
21. Case C‑310/17 Levola Hengelo BV v Smilde Foods BV, ECLI:EU:C:2018:899, para 44
22. Case C-833/18 SI and Brompton Bicycle Ltd v Chedech / Get2Get ECLI:EU:C:2020:461, para 37
23. Walter v Lane [1900] AC 539
24. Tanya Aplin and Jennifer Davis, Intellectual Property Law Text, Cases, and Materials, (Third Edition, Oxford University Press, 2017) page 73
25. lam, V. (2015). Sporting events as dramatic works in the UK copyright system. The Entertainment and Sports Law Journal, 13, 1. DOI:

Background

Ever since India’s “tryst with destiny” in 1947, it has been the aim of Indian policymakers to promote equitable economic development in the country. This strategy of ‘inclusive growth’ aims to balance economic growth with the reduction in the acceleration of inequality and poverty. Yet, many in India grapple with deprivation and vulnerabilities.

According to International Labour Organisation’s (ILO) World Social Protection Report, 2017- 19, India spends only 2.7% of its Gross Domestic Product (GDP) on total social protection expenditure (including health), thus becoming a global outlier on social protection. Moreover, about 22 per cent of India’s population lives below the poverty line. The so-called ‘trickledown’ economics has demonstrably failed to empower the poor.

The economic structure in India can be characterised by its labour force which is not only heterogeneous but is also marked by informality and self-employment. An average of 4.5 million people join India’s labour force each year, but a 2017 ILO survey found that 92 per cent of the workforce – now totalling 426.1 million people – are in the unorganised or informal sector. This predominance of informality suggests the extremely low levels of social protection and social agency for such workers. Most protective and preventive social security legislations serve only the organised economy whereas social security programmes dedicated to the unorganised sector are predominantly promotive in nature.

Therefore, the concerns of the policymakers should be on the rise on account of, firstly, the growth of the unorganised sector at an alarming rate, with no social security for the workers to rely upon during contingencies and old age. Secondly, there is an acknowledgement of the inadequacy of the existing legal and protective frameworks by the development planners and scholars. Finally, with the escalating fiscal deficit scenario, a rethinking of the existing social protection measures becomes even more fundamental in order to devise a future agenda in this regard. With the advent of globalisation, the world of labour has been affected in the most adverse ways, therefore warranting greater attention and protection.

The following paper begins with an attempt to trace the concept of social protection. It will also throw some light on some of the social protection programmes along with their assessment in a brief yet comprehensive manner. India is also exploring the establishment of a nationally-determined social protection floor, hence this concept will be dealt with in detail. The fiscal, design-based, and implementation roadblocks shall be discussed in order to endeavour to develop a roadmap for an effective social protection system and policy which can be in consonance with the overall macroeconomic policy of India.

Introduction

The World Social Protection Report, 2017- 19 says that “social protection or social security, is a human right and is defined as the set of policies and programmes designed to reduce and prevent poverty and vulnerability throughout the life cycle. Social protection includes benefits for children and families, maternity, unemployment, employment injury, sickness, old age, disability, survivors, as well as health protection.” It also adds that “social protection systems address all these policy areas by a mix of contributory schemes (social insurance) and non-contributory tax-financed benefits, including social assistance.”

The growing trend towards informalisation as well its expansion in the labour markets has led to the emergence of a renewed concern for social protection in the recent decades in both the developing as well as the developed world. India has an extensive ambit of social protection programmes, but the overall public expenditure on social protection (excluding public healthcare) is only 1.5% (approximately) of the GDP, lower than many middle-income countries. The Economic Survey of 2018 revealed that 87% of firms are purely informal, outside both the tax and social security nets, thus estimating the size of the informal sector and reflecting the challenge of decent work in India.

The framework

According to a Senior Social Protection Economist and Lead Economists from the World Bank (as mentioned in their editorial piece in the newspaper The Indian Express), typically, a comprehensive social protection system requires three types of instruments to work together:

• First, promotional instruments invest in the ability of families to survive shocks on their own — by enhancing productivity, access to job opportunities and incomes through human capital infrastructure, wage legislation, labour policies, skills training and livelihood interventions.
• Second, preventive instruments aim to reduce the impacts of shocks before they occur by enabling households to use their savings from good times to tackle losses in tough times. This is mainly done through social insurance programs.
• Third, protective instruments mitigate the impacts of shocks after they have occurred through tax-financed redistribution from the non-poor to the poor. These programs would classically be called anti-poverty measures as they target social assistance or safety net programs to the poor or destitute, whether in kind or cash.

In India, the term encompasses social insurance, social assistance, social protection, social safety net, micro-insurance or insurance for the poor and other measures involved. India has mainly relied more upon promotional measures (primarily social assistance) and protective measures are mainly available to formal workers (only 6.5% working in the formal sector, according to ILO). The remaining 81% of the workforce i.e. the informal workers are devoid of any such coverage.

The two most important promotional programmes at present are the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) and the Public Distribution Scheme (PDS). The former is a Labour Market Programme whereas the latter is a Social Assistance programme. It becomes essential to revisit these policy measures, especially in the light of the rising informality and the precariat nature of the workforce and the poor in India. MGNREGA will be seen by keeping in the background the declining productivity of the rural agrarian community.

MNREGA

The Mahatma Gandhi National Rural Employment Guarantee Act was passed by the Indian parliament in 2005 to enhance the “livelihood security of households in rural areas of the country” while creating “durable assets.” It requires the government to provide at least 100 days of employment per financial year to all rural households with adult members willing to do unskilled manual labour on community and local infrastructure development projects.

However, innumerable studies stress upon the need of an intense revaluation of the system in which this programme functions. The programme struggles with concerns such as leakages and misappropriations in the scheme including, non-availability of muster rolls at worksites, fake entries in muster rolls, use of contractors and machinery, payments to fictitious (ghost) workers, infrequent social audits, which, along with ‘proactive disclosure’ was inbuilt in the scheme as an accountability mechanism, and ineffective grievance redressal (Ministry of Rural Development 2012). Social audits reveal a rise in “Benami” wage payments. Source: Government of India Economic Survey 2016- 17

An overview of the various states done by PRS Legislative Research in 2014 reveals that, on average, the number of days of work provided was only 46.2, well below the 100 days of work stipulated. While states like Mizoram (87.8) and Tripura (86.9) performed relatively well in this regard, there were five states—Arunachal Pradesh (28.8), Assam (25.4), Goa (13.5), Punjab (27.3) and Uttar Pradesh (28.5)—that actually provided less than 30 days of employment.

MNREGA has also led to severe distortions in the labour market. According to Bhagwati and Panagariya, the programme distorts the labour market in three ways—diversion of the labour force away from productive private-sector employment; increasing the market wage, thus posing the risk of “perverse choice of input mix in agriculture”; and, a possible adverse impact on work culture. This rise in market wages has a tendency to further perpetuate the agrarian distress that is sweeping rural India.

Therefore, the government should focus on simplification and strengthening of procedures for the effective implementation of MGNREGA. Lessons can be learnt from better governed States, from creating improved financial management systems to using technology-enabled banking solutions like smart cards, social audits and building grievance redressal systems. Corruption should be dealt harshly, but cutting funds to development programmes is definitely not a plausible solution. Corruption can be fought through the use of IT and community-based accountability mechanisms like social audits.

It should have an intensified focus on marginalised communities in the most backward blocks and on skill development of households that have completed 100 days (about 8% of the total). In addition, the act can be linked with the Socio-Economic Caste Census to ensure better targeting. It is also time to review the basis for determining wage rates. But most of all, what the MGNREGA requires is consistency in political support.

PDS

The Public Distribution System (PDS) is the largest safety net programme in India, which was introduced with the objective of protecting both the primary producers and consumers from fluctuations in agricultural prices. It operates by providing and ensuring a floor price for the producers of certain food grains and agricultural commodities and a price subsidy to consumers for essential commodities (most important being rice, wheat and kerosene). This programme distributes subsidized food items to the poor through fair-price shops. PDS receives the maximum budgetary allocation of all SP programmes in India, costing ~1% of GDP.

The administration is decidedly cumbersome and leakage-prone: The Central Government procures food grains and transports them to each state, while State Governments are responsible for identifying eligible households and delivering the subsidised items to designated shops, from where beneficiaries can buy entitled amounts at heavily subsidized prices.

PDS transformed from a general and universal scheme to a geographically targeted supplemental subsidy scheme, and since 1997 to a scheme targeting food subsidy (in proportion to state poverty levels estimated by the Planning Commission) to BPL households, called the Targeted Public Distribution System (TPDS). The TPDS has a 2-tiered pricing structure for Below Poverty line (BPL) and Above Poverty Line (APL) households.

The two main problems associated with the TPDS are related to delivery and targeting errors. These add to the cost of delivering subsidy to a poor household. India’s largest SP programme suffers from mammoth issues, such as high diversion ratios (proportion of food grains fraudulently sold in the open market), faulty targeting (high inclusion and exclusion errors), poor storage conditions and wastage of grains in transit. Financially, PDS is massively inefficient: The Government spends Rs. 3.65 to deliver Re. 1 worth of food. Recently, as part of the discussion on cash transfers replacing subsidies, the Government attempted to estimate inefficiencies in PDS. It was found that only 28% of PDS resources reach the intended beneficiaries – 36% are lost due to leakage (pilferage, wastage) and another 36% get diverted to non-beneficiaries (due to corruption, targeting errors). Due to this, ~40% of the intended beneficiaries do not receive their entitlements. Source: Government of India Economic Survey 2016- 17

Juxtaposing the data on PDS use from the NSS with the decline in the proportion of underweight children from the National Family Health Survey and the Annual Health Survey conducted by the Office of the Registrar General of India and the District Level Health Survey conducted by the International Institute of Population Sciences, it is difficult to find any correlation between the two. Therefore, there is a clear disjunction between increase in the use of PDS and a decline in malnutrition.

Considering the ubiquitous role that TPDS is playing in becoming a source of subsidised cereals to a rising proportion of the Indian population, the strengthening and streamlining of TPDS should be a continuous process. Procedural, as well as policy reforms, are needed to deal with the problems surrounding this system. Technology-based reforms are suggested i.e. an end-to-end computerisation of TPDS operations which would facilitate digitization of ration cards/beneficiary and other databases, computerization of supply-chain management, setting up of transparency portals and grievance redressal mechanisms.

It is difficult to let go of the PDS, at least in the short run. The political sensitivities, complexity in dismantling the massive system built over time, and inadequate infrastructure to transfer money to beneficiaries may act as barriers. Therefore, a revamping of the PDS is required, which should definitely be backed by strong political will and good governance. One must look up to the stellar performance by Odisha as a success story of governance in the domain of the PDS. With its state-of-the-art e- PDS from 2004 onwards, it embedded the values of transparency and accountability in its governance. The outlets were largely brought under the ambit of community, presently managed by gram panchayats, self-help groups (SHGs), cooperatives and non-governmental organisations, which ensured participatory management and transparency in administration. The entire distribution system was computerised and vans were mobilised to reach distant places that were otherwise disconnected from the mainstream distribution network. The movement of food grains from the warehouses to fair prices shops was monitored and tracked with GPS systems. The weighing scales were digitised, transport agencies were separated from distribution agencies and fixed distribution schedules were introduced. In fact, the overall system was strengthened with provisions for a grievance redressal mechanism. NSS statistics showed an increase in coverage of beneficiaries, contribution of PDS grains in calorie intake, consumption among the weaker sections as compared to privileged social groups.

The functioning can be improved further by strengthening the identification mechanism and widening the distribution network to remote corners to enhance access. Continued research and improvements in logistics throughout the distribution chain is imperative.

A social protection floor for India

Social Protection Floor or SPF is a joint United Nations campaign which is anchored by the ILO. The origin of the concept is derived from the Social Protection Initiative launched by the United Nations System Chief Executives Board for Coordination in April 2009. As described by UN Secretary-General Ban Ki-moon, the aim of the Initiative is to help governments and partners establish minimum protection floors in every country which guarantee that no one lives below a certain income level and everyone has access to essential public services such as water and sanitation, health and education.

According to the UN guidelines, an SPF must comprise at least four social security guarantees under its framework-

1. Access to a nationally defined set of goods and services, constituting essential health care, including maternity care, that meets the criteria of availability, accessibility, acceptability and quality;
2. Basic income security for children, at least at a nationally defined minimum level, providing access to nutrition, education, care and any other necessary goods and services;
3. Basic income security, at least at a nationally defined minimum level, for persons in active age who are unable to earn sufficient income, in particular in cases of sickness, unemployment, maternity and disability; and
4. Basic income security, at least at a nationally defined minimum level, for older persons.

Countries have the flexibility of designing an SPF depending upon their level of development and their specific history and context. According to ILO Recommendation 202, an SPF must create clear-cut entitlements and should be backed by legislation.

The SPF Advisory Group Report (ILO 2011a) states that the SPF is “part of a two-dimensional strategy for the extension of social security, comprising of a basic set of social guarantees for all (horizontal dimension), and the gradual implementation of higher standards (vertical dimension)” Both are to be pursued simultaneously, in a framework of “progressive realization, compatible with a country’s fiscal an administrative capacity and in the framework of an integrated social protection system” (UNICEF 2012). Therefore, building a social protection floor is an incremental, rights-based process that requires national adaptation with respect to how and through which entitlements transfers in cash and in-kind are organized.

In moving towards an SPF, three types of inter-related challenges come to the picture. These include firstly, the fiscal challenge, secondly, the challenge of an appropriate design for the dimensions of the proposed SPF, and finally the challenge of effective implementation which also involves improved accountability of all those implementers and pro-active measures to reach the most vulnerable segments of the population. The study aims to address these challenges whilst coming to the SPF framework in the context of India.

In an attempt to come towards a universal definition of SPF, the UN (ILO & WHO) stated that a social protection floor could consist of two main elements that help to realize respective human rights:

• Essential services: geographical and financial access to essential services (such as water and sanitation, adequate nutrition, health and education).
• Social Transfers: a basic set of essential social transfers, in cash and in-kind, paid to the poor and vulnerable to provide a minimum income security and access to essential health care.

Keeping the above in mind, one cannot undermine the significant two-way linkage between social protection (floor) and labour conditions, and hence labour protection- which forms one of the important strategic objectives of an SPF.

Cost and feasibility of an spf mechanism

A number of studies establish that the financing of social protection measures can be kept at a fairly modest percentage of national income (ILO & WHO, 2009). An ILO (2008b) Costing Study for a “Basic Social Security Floor” for ten countries (including India) on universal old-age protection, child benefits, essential health care, and an unemployment package (on the lines of the MGNREGA in India) covering 10 per cent of the labour force concluded that the initial gross annual cost of the overall basic social transfer package (excluding access to basic health care that to some extent is financed already) would be in the range of 2.3 to 5.5 per cent of GDP in 2010. Individual elements appear even more affordable. The annual cost of providing universal basic old age and disability pensions, for example, is estimated in 2010 at between 0.6 and 1.5 per cent of GDP in the countries considered (ILO, 2008b).

The level of social provisions is, however, driven more by a country’s political and policy environment than its level of development. The cost of a well-designed social protection floor is small compared to the tax revenues often foregone by not effectively collecting revenue from the wealthy and by not tackling inefficiencies that exist in many expenditure programmes.

Effective country-specific programmes, which can gradually expand, are not only affordable but can, in the long run, pay for themselves by enhancing the productivity of the labour force, the resilience of society and the stability of the political process. The ILO estimates that a set of minimum transfers is not costly in per capita terms, although it is likely to require support from external sources in the poorest settings.

Therefore, in the long run, the mobilization of resources in India must stem from raising the tax/ GDP ratio from its present low levels. Concessions which have a weak economic rationale must be cut down upon.

Designing of the SPF

In the past few years, there has been an uproar of a new generation of policies and programmes which endeavour to provide the essential ingredients of a comprehensive SPF for India. There is a movement toward a rights- based approach to provide universal entitlements of health, food security, housing, education, basic income security, social security and employment, among others. Therefore, the implementation of all the current undergoing schemes must keep in consideration the four tenets of an ideal SPF mechanism, as mentioned before. A social protection strategy to address vulnerabilities addressed by each segment of the vulnerable population must be carefully designed.

“Within a rights-based framework for SPF, there has to be a dovetailing of principles of universality with the extent and depth of vulnerability, so that the use of scarce resources can be prioritized.”

The targeting of social protection programmes to “Below Poverty Line” households remains a major issue in India. The identification criteria, as well as their application on the ground, are extremely faulty, leading to large and costly exclusion errors (since benefits are not graduated but loaded onto BPL households).

Due to the concurrent nature of social protection programmes, the passage of programmes by the Centre reduces the flexibility that States have in designing their own schemes (since Central schemes also pre-empt the State’s fiscal space) as well as States’ ability in implementing the Central programmes with desired flexibility. The results can be sub-optimal as the design of the scheme may not be appropriate for the state and states may neither have the wherewithal to develop their own schemes nor the incentive to implement the Central schemes well. A similar logic holds for local bodies, especially large urban bodies which have a larger tax base and also requisite capacity to address SP issues. On the other hand, the Central government may have strong politico-economic compulsions to retain control of Central Schemes and to monitor them. These reasons become stronger in a rights-based framework since the Central government constitutionally shares the obligations arising out of the legislation (or where the implementation responsibility is on lower levels of government).

Therefore, a rights-based framework for implementation of SP programmes provides the ground for greater decentralization.

One of the general principles of the design of SP systems is to consider whether, and how, these systems could graduate from non-contributory to contributory schemes, which could add to their sustainability over the long run. Recently, the Pension Parishad, an umbrella organization of grassroots organizations has raised the demand for a universal non-contributory contribution, mainly on grounds of its administrative feasibility. The NCEUS has recommended non-contributory schemes for the very poor but a contributory scheme for the very poor.

The design of an effective system must also be able to overcome systematic gender and caste-based barriers. It has been argued that SPF programmes which address female vulnerabilities at early stages of the life cycle are especially successful, but such protection should be extended to the causes of vulnerability and to all stages of the life cycle of women.

Implementation challenges

Firstly, SP programmes rarely build on the cost and incentive structure for implementation at various levels. There is rarely any consideration of political economy issues, local power structures, and conflicts of interest. Large programmes function through overloaded administrative structures both at the top (where monitoring and design issues are concentrated) and the bottom (where implementation issues are concentrated). Therefore, given the size and complexity of the programmes, there has to be clear advanced thinking of the institutional architecture of the SPF programmes and the administrative requirements. There is also the need for a proper appreciation of communication and IT technologies.

Secondly, measures need to be taken to continually strengthen internal and external accountability where the role of effective decentralization becomes important.

While creating legal entitlements, as proposed here creates an important condition for better accountability, this is not at all automatic due to pervasive asymmetries and the cost and tardiness of legal solutions.

Formidable formalities and documentation work disentitles the most vulnerable empowers the local bureaucracy or local middle-men and increases corruption at the cost of these groups. The poorest and the most vulnerable sections of any population, whether rural or urban, who have the smallest social capital as well as physical and financial resources, are excluded from participating in the SP programmes.

Therefore, there is a need for proper design and proactive implementation with outside support.

Conclusion

The creation of a Social Protection Floor can have dramatic consequences for the lives of the poor, macroeconomic stability, growth and development. It can lead to socially inclusive and sustainable growth. The SPF will lead to the progressive realization of human rights. The Social Protection Floor should be seen in conjunction with promotional Social protection Programmes, and an appropriate social and economic policy framework which focuses on the expansion of employment opportunities and decent work.

The UN recommends that the SPF build on existing initiatives, therefore a revamp of the current social protection programmes is needed. Instituting such an SPF poses challenges but it is within the capacity of the Indian state at its present level of development to meet these challenges. A Social Protection Floor must not only cohere with its own constituent elements, it must also be consistent with the larger social protection strategy, and the latter and macro-economic policy must cohere with each other in order to maintain a rapid tempo of sustainable, equitable and socially inclusive growth.

The main challenge before the economy is how to promote a pattern of growth that can sustain a high growth rate of good quality (formal) employment in manufacturing and other productive sectors, promote social inclusion, reduce inequalities, and improve human capabilities of those sections of the population who have been largely excluded from the benefits of the current process of growth. This will require sustained investment in social protection.

The creation of a Social Protection Floor in the manner that is being visualized through an extension of entitlements and the rights-based approach will lead to a definite strengthening of these positive outcomes and create the long-term basis for inclusive growth in India.

Why is the topic important/relevant in 2019?

Data is quite possibly the most valuable asset in today’s business landscape. It forms companies’ big data libraries, fuels marketing, and advertising decisions, advises product and promotion launches, and contributes to many more crucial business decisions. Online privacy is a serious concern globally, from North and South America to Europe, Africa, and Asia. According to the article, The Survey by Big Brother Watch, around 80% of the respondents said that data protection is a serious concern. Another survey, by the World Economic Forum, resulted around 58% stating that it is a serious concern. The survey also found that 59% of people believe that their privacy is not protected on the Internet. Therefore, data protection is one of the most salient topics of 2019. With the world becoming more connected, and developing nations joining the ranks, shortly everyone will be online. The companies and organizations with which people transact will be held to higher standards and will become bigger targets for nefarious actors. These organizations, public and private, governmental or NGO, will be held responsible in the court of public opinion and within the courtroom for failing to keep the general public, and their data, safe. The legal implications of data mismanagement will soon be devastating, not to mention the effect of loss of customer loyalty on bottom lines. New data protection policies and public sentiment will shape how organizations conduct business for years to come.

Real-world examples/case studies supporting the prediction Intro real-world examples

Currently, the United States lacks a comprehensive, overarching data protection policy, but it does have numerous regulations that cover different industries. For example, within the healthcare sector, there is Family Educational Rights and Privacy Act (FERPA), Children’s Online Privacy Protection Act (COPPA), and Health Insurance Portability and Accountability Act (HIPAA). There are similar networks of regulations within technology and financial sectors, and even more, regulations depending on the state(s) which an organization operates. The variations among sectors and between states make data protection adherence difficult for organizations and complicate enforcement for the government. The Council on Foreign Relations says that the patchwork style, “puts U.S. companies at a disadvantage globally as emerging economies adopt simpler, and often more EU-style, comprehensive approaches,” and the CFR calls for Congress to join other nations in their data protection approach, combining the various regulations into one, cohesive federal policy that covers all institutions, fills current gaps, incentivizes companies to prevent data losses, and provides a way to hold organizations that violate privacy accountable.

Another North American county, Canada, has a strong grasp on data protection with its Personal Information Protection and Electronic Documents Act (PIPEDA). However, some believe it could be more comprehensive and in line with GDPR, allowing for individuals to provide and revoke consent for organizations to use their data.

In Brazil, Lei Geral de Proteção de Dados Pessoais (LGPD) was signed on August 14th, 2018 and it goes into effect in February 2020. This piece of legislation is very similar to the EU’s GDPR and covers personal data, extraterritorial application, and lawful bases of processing personal data. Extraterritorial application, which is similar to GDPR, applies data privacy protection not only to operations in Brazil but also to firms whose purpose it is to offer goods or services in Brazilian territory or when data is collected in Brazil. LGPD also outlines lawful bases of processing personal data, some of which differ from GDPR including for public agencies, research studies, legal or arbitration proceedings, and protection of life & safety, among others. Lastly, it specifies the sanctions and penalties of violating LGPD, one of which is a two-percent fine of an organization’s revenue within Brazil.

Other South American nations have similar policies or established governmental oversight, such as Chile, with its Privacy Protection Laws (Law No. 19.628, 19.812), and Peru, with the National Registry for the Protection of Personal Data (NRPDP). These are all examples of how government policies are not only influencing a company’s data protection policies but also requiring certain actions by corporations.

To protect data, the Asia-Pacific region is beginning to develop laws that outline policy. For example, Australia amended the Australia Privacy Act 1998 to include mandatory breach notification requirements that require organizations to report an “eligible data breach” to the Office of the Australian Information Commissioner and notify affected customers immediately. Japan has implemented the privacy law PIPA (Personal Information Protection Act). PIPA deals with personal information. It also creates the amendment PIPC (Personal Information Protection Commission) which is an authority charged with overseeing data protection. China doesn’t have a privacy law but is currently trying to protect the privacy and data security through Cyber Security Law. The law requires consent from individuals to collect and use personal information. The Chinese government forces organizations operating in China to follow the Cyber Security Law, and if companies don’t comply with the law, they receive penalties such as financial penalties or losing their right to conduct business in China.

Many countries in Asia are beginning to implement data and privacy protection legislation, but creating a comprehensive framework to implement in Asian-Pacific countries is difficult as there is no United Asia, similar to the EU. However, companies are trying to make a privacy compliance strategies that follow six core principles of privacy, including notice, choice, security, access and correction, data integrity, and data retention.

Public sentiment and their consequential legal laws and policies has created huge hurdles for any company that does business internationally. From medical devices to social media, data collection is plenty and must be handled carefully, specific to the country of the users.

In the United States, relatively recent events such as the Equifax data breach, DNC email hacking, and Russian interference in the 2016 election challenge the public’s reception towards data breaches. It is an ever-changing reality within American life and something for which companies need to be conscious. A January 2017 study by the Pew Research Center found that, “64% of Americans have personally experienced a major data breach,” and that, “large shares of the public lack trust in key institutions to protect their personal data.” In combination with the U.S.’s piecemeal policies and negative public sentiment towards data protection, companies operating within the United States will be firmly in the crosshairs for their data protection decisions.

After the GDPR was established in May 2018, companies operating in EU nations began updating their internal policies to comply to the stringent new requirements. For example, Facebook added a page to address new policies concerning GDPR and how it affects their advertising business: EU users’ data, specifically cookie usage, would have to be compliant with GDPR in how Facebook obtains consent and will only keep the data for so long as is necessary for the purposes for which it was collected; and that data subjects are informed of the retention period and retention period criteria. Despite these efforts, some companies have already been faced with fines and lawsuits from EU governments.

Microsoft is currently in legal trouble with the Netherlands and could potentially be fined tens of millions of dollars due to the findings of a report commissioned by the Dutch government. The allegations are that Microsoft maintained a ‘large scale and covert gathering of people’s personal information via Office applications.’ An investigation revealed that even though Microsoft tried to make their policies and practices GDPR compliant by storing documents on servers based in the EU, other data with private information was still ending up on US servers. Telemetry and other content such as email titles, and sentences where translation or spell check were used was discovered to be collected and secretly stored on US data systems. These practices are non-compliant with the GDPR due to the lack of transparency in practices, lack of purpose limitation, absence of consent or withdrawal, and lack of legal ground for processing the data.

In an effort to correct the situation, and avoid fines, Microsoft has provided an improvement plan to end all violations; the plan is set to be submitted for approval this April. In the meantime, Microsoft has provided a “zero exhaust” version of applications to system admins. Researchers hired by the government on the matter also recommend a prohibition on Microsoft connected services, a removal of the option for users to send data for “help improve” office; and to avoid using the web-only version or SharePoint Online. For further protections they even suggest VIP accounts be periodically deleted, to ensure that diagnostic data associated with those accounts will be deleted more frequently, and for system admins to pilot alternative software.

To avoid EU prohibition (confusing word choice), Microsoft is expected to meet compliance expectations. This is not Microsoft’s first encounter with privacy laws abroad. In 2013, Microsoft challenged a warrant demanding an email account whose data was stored in Ireland. The grounds were based on the 1986 Electronic Communications Privacy Act that the government could not demand US companies turn over data that is stored overseas. The CLOUD Act, passed by Congress in 2018, worked to clarify that US companies, provided a warrant was presented, would have to turn over data on U.S. citizens regardless of where their information is stored; however, the same act allows companies to reject challenge these requests if they believe the request violates the privacy rights of the foreign country the data is stored in. (Wording?)

Analysis and rationale supporting why or why not the group thinks that the prediction will come true Determine after research Considerations for possible solutions/improvements/advancements (e.g. additional controls, training, etc)

Deloitte Digital Media trends survey, “shows that if consumers are given control over their data, including the right to delete it, they are more comfortable sharing it.” Companies many see increased loyalty from customers by adopting policies that provide more control over data.

Pew: Most Americans do not adhere to the recommended data protection practices, making it more difficult for companies when they may be hacked. The public wants security, but they do not always act like they want security. This presents a challenge to companies, but it is also an opportunity to dictate public sentiment by being a market leader in data privacy and protection.

The most common way to protect privacy is using encryption. Several governments have seen benefits of controlling access through encryption. For example, China’s Anti-Terrorism Law makes it possible to decrpyt and access technical support of telecom or Internet service providers to investigate terrorist activities. Also in India, if the something happens relating terrorism, they use a central monitoring system to investigate the phone and internet services.

With the amount of data being produced globally growing at an exponential rate, data protection has come to the forefront of the news due to regulation changes, as well as public distrust in companies with their personal data. As a result of these two driving forces, organizations have generally been reactive to adjusting their own data protection policies.

The age of the Internet and big data is reflected in the reformation of data protection laws in the EU. Implemented on May 28, 2018, the General Data Protection Regulation (GDPR) replaced Directive 95/46/EC which was put into place in 1995. Times are drastically different than they were in 1995, prompting this change.

Another continent experiencing changes, albeit differently than in the EU, is Africa. With the rise of affordable mobile devices and infrastructure growth, Africa has one of the fastest-growing populations of Internet users. A major difference in Africa compared to western countries in terms of how internet services are provided; in Africa, internet services are given for free in return for access to their data, from Facebook. Along with the rapid growth of internet use, these factors set the stage for a different approach to data protection regulations.

While the GDPR covers all countries in the EU, the data protection laws in Africa are disparate. Although the African Union has established the AU Convention on Cybersecurity and Data Protection (AU Convention), it is up to each individual country to transpose it into their nation’s legislation. Seventeen out of the 54 countries have comprehensive data protection laws, but even within those 17 nations, the laws vary from country to country.

“GDPR will be one of the biggest disruptive forces impacting business models across industries – and its reach extends beyond the EU borders.” – Cindy Compert, CTO, Data Security & Privacy, IBM Security

From the IBM Study: Majority of Businesses View GDPR as Opportunity to Improve Data Privacy and Security, almost 60% of the organizations surveyed embrace GDPR as an opportunity to improve privacy, security, data management or as a catalyst for new business models. IBM created solutions for their customers to become more compliant with GDPR, suggesting businesses to leverage improved policies to gain customer trust.

Because the current climate consists of increased regulation and strong public distrust, businesses have no other option but to adjust their own policies to comply in order to survive. By embracing current regulations, companies not only avoid fines and penalties, but they can also improve consumer trust. Companies who choose to ignore the current climate will be left behind.