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30 June 2020
Schoenherr publication
czech republic slovakia slovenia austria

to the point: technology & digitalisation l June 2020

Welcome to the June edition of Schoenherr's to the point: technology & digitalisation newsletter!

We are excited to present a selection of legal developments in the area of technology & digitalisation in the wider CEE region.


Insights waiting for you in this edition: 


Hot water instead of toxic substances. Bags that can't be stolen. Phosphorus that can be "recycled". "Waste pieces" with a cult character. Beer with "rhythm & beat". Austrian Patent Office President Mariana Karepova was delighted to announce the truly innovative ideas and solutions nominated for the Austrian "Staatspreis Patent", a state prize awarded for trendsetting inventions and trademarks. The winners in the "cleverest invention", "most creative brand" and "most human patent" categories will be awarded in November 2020, and Schoenherr partner Guido Kucsko will be a member of the jury again.

These nominations serve as proof that we live in a time of constant innovation and that our society is driven by new technological solutions, strongly interlinking intellectual property (IP), innovation and technology. IP aims at driving innovation, innovation drives technology and technology drives modern society. Read our monthly update on innovative legal topics across all areas of technology and digitalisation.

Companies spend a lot of time and money creating, innovating and protecting their intellectual property. When the protection fails due to unavailable or insufficient evidence, the frustration is understandably high.

The World Intellectual Property Organization (WIPO) has therefore launched its new global online service WIPO PROOF, a "time stamp" service confirming that a certain document existed at a certain point of time. Read more on our blog!

As of 1 July 2020, matters related to the protection of intellectual property in Poland will be dealt with by newly established specialised IP courts. These will operate as departments within regional courts in Warsaw, Gdańsk, Lublin and Poznań, and will consist of experts and specialists within the broadly understood IP area. The powers and role of patent attorneys in the proceedings will be increased. The new court structure will also include the "technical" court in Warsaw, exclusively competent in matters related to new technologies, software, inventions and any aspects involving complicated technical and technological matters. As a rule, the cumulation of highly complex technological cases in one court should create an opportunity for such cases to be decided more quickly.

Cookie banners have become a common sight for internet users in Europe. Recently the first cookie banners also appeared on Austrian TV screens. This is a side effect of the hybrid broad-cast broadband TV ("HbbTV") standard, which merges classical television with the internet. HbbTV uses common web technologies like cookies for usage analytics and targeted advertising. Art. 5 (3) ePD therefore applies and viewers must be informed and, where necessary, asked for their consent. But is this enough to guarantee viewers' privacy? Visit our blog to learn more!

On 16 June 2020, the EU Commission announced an agreement of the Member States on an interoperability solution for mobile tracing and warning apps. With the summer travel season on the horizon, the EU Commission is striving to create technical prerequisites for the COVID tracing apps to ensure they will work across borders.

On 16 June 2020, the EU Commission announced an agreement of the Member States on an interoperability solution for mobile tracing and warning apps (press release).

With the summer travel season on the horizon, the EU Commission is striving to create technical prerequisites for the COVID tracing apps to ensure they will work across borders. In other words, the Member States have agreed on technical standards for the necessary information exchange between what are currently just national contact tracing apps.

Most of the tracing apps applied in the Member States already use a decentralised architecture. This means that the randomly assigned identifiers of users that were tracked in someone's environment will only be stored on the device itself for a limited period and will be checked by the device against the identifiers of users report-ed to be infected. The agreed standards for interoperability build on this decentralised architecture. As soon as this solution is deployed, the "national" apps will also work when a user travels to another EU country (so long as this country also pro-vides a decentralised COVID tracing app).

The EU Commission is doing its best to address compliance and privacy concerns, e.g. by ensuring high encryption standards, the GDPR's principles of "privacy by design", data minimisation, access and storage limitations, and emphasising that such technology can only be used if it is voluntary and properly notified.

But there is still plenty of criticism. Can an individual ever fully assess the privacy impact when using technology that traces health data? If not, how can you provide valid consent? The upcoming summer months will show the acceptance rate among Europeans. In any case, the EU Commission will set up the gateway service to enable the international data exchange in due time.

Investing in start-ups in times of crisis can lead to huge gains or total loss. Thomas Kulnigg and Maximilian Nutz discussed the opportunities and risks that start-ups and investors are currently facing in an interview with (German only). Their conclusion: It is difficult to estimate right now how the start-up sector will evolve. Some companies will not survive, but a few others will emerge from the crisis stronger. Read the interview at: Start-up investment in times of crisis.

The Austrian government recently announced that it will support Austrian start-ups with an additional EUR 450m of subsidies. In relation to that, it also announced the introduction of a new company form: the "Austrian limited". The new company form was part of the Government Programme 2020-2024. According to a recent press article, the new company form will require share capital of only EUR 10,000 (compared to EUR 35,000 for a traditional limited liability company). The process of establishment will be quick and without a lot of bureaucracy, i.e. it will be done digitally, and the process of issuing shares to employees and investors will also become easier, although no details have been announced yet. It remains to be seen whether the new company form will boost the Austrian start-up scene or whether founders will steer clear of it to avoid being branded as entrepreneurs that cannot afford a "proper company".

In a recent publication, Günther Leissler and Thomas Kulnigg discuss trends in the areas of AI, machine learning and big data in Austria. The publication was issued by Global Legal Insights and can be read here.

The COVID-19 pandemic has accelerated the migration of human activities into the digital environment. It has also given added impetus to legislative changes in the wider area of electronic transacting, including smart contracts. Legislators the world over – including in Slovenia – are looking into appropriate regulatory responses to this technology. Jurij Lampič provides some thoughts on the aspects of smart contracts regulation which seem worth considering during the legislative process, including – crucially – whether smart contracts require additional regulation at all. A condensed version of this article in Slovenian language first appeared in Pravna praksa legal weekly and can be read here (subscription required). The English original is published on our technology and digitalisation blog.   

In response to the COVID-19 outbreak, the Czech data protection authority, i.e. the Office for Personal Data Protection (the "Office"), published a list of ways to avoid cyberthreats while working remotely. As it seems home office will remain popular even after the anti-coronavirus measures have been relaxed, it is worth summarising the Office's basic IT security recommendations. Although most of the rules are intended for employees, employers should also read them to check that at least basic IT security measures have been adopted in their organisation. Visit our blog to learn more!