The impact of the EU digital initiatives on the creation, exploitation of and access to digital rights and assets

Digital information, data, content, currencies and online reputations are some of the most valuable parts of the asset base of many businesses worldwide.  These digital assets are often essential to the effective understanding, management, operation and growth of enterprises and should be at the forefront of company plans to derive maximum benefit from the digital ecosystem of interconnected devices and ultrafast connectivity. 

Regulators across the globe are currently developing strategies to address the challenges of the digital economy. The European Union is introducing ground-breaking new rules to regulate online platforms and the use of artificial intelligence, among other issues, as part of its Digital Single Market strategy.  These regulatory developments present opportunities, and will also require changes to operational practices for, a wide range of businesses. They will also require significant compliance efforts from organisations engaging in the European digital market. To help you navigate this evolving digital regulatory landscape we have brought many of these initiatives together with our “Digital European Developments Tool

In March 2021, the Commission presented the EU’s Digital Compass which sets out a vision for Europe’s digital transformation by 2030. This has four core pillars: skills, government, infrastructure and business. The plan includes targets and key milestones, a joint governance structure including a traffic light monitoring system to identify successes and gaps, as well as multi-state projects combining investments from the EU, Member States and the private sector.

The vision builds on the EU’s strategy for the digital ecosystem set out in its Communication on "Shaping Europe's digital future" in 2020. It considers the enormous changes brought about by the Covid-19 pandemic, which has significantly accelerated the use of digital tools, demonstrating their opportunities while exposing the vulnerability of our society to new digital inequalities. The Communication also includes a monitoring system to measure the progress of the EU against the key targets for 2030. By 2030, across the four pillars, Europe aims to deliver a digitally skilled population, sustainable digital infrastructures, and to have enhanced the digital transformation of businesses and digitalisation of public services through  concrete targets and deliverables that may provide opportunities across the digital ecosystem.

The EU’s Shaping Europe's Digital Future strategyforeshadowed a range of proposals aimed at furthering the EU’s digital transition with respect to technology, a fair and competitive digital economy and an open, democratic and sustainable society. Under this digital umbrella there are a number of key regulatory developments, including:

  • The proposed Digital Services Act, which aims to counteract illegal content and trade on online platforms, regulating online advertising, whilst maintaining the general ban on content monitoring for platforms, and the liability regime of the eCommerce Directive.

  • With the proposal for a Digital Markets Act, the Commission aims to tackle systemic risks of providers of core platform services – deemed to be “gatekeepers” - by introducing an ex ante regime with a list of self-executing obligations and prohibitions.

  • Recognising that data is transforming the economy and society, the European Strategy for Data is the EU’s plan to take full advantage of data-driven innovation while placing the interests of individuals first in accordance with European values, fundamental rights and rules.

  • The Commission announced a number of specific legislative initiatives related to data, the first of which is the proposed Data Governance Act, launched in November 2020, which aims to foster the availability of data for use by increasing trust in data intermediaries and by strengthening data-sharing mechanisms across the EU. It facilitates making public sector data available for re-use, in situations where such data is subject to rights of others, allowing personal data to be used with the help of a ‘personal data-sharing intermediary’, and allowing data use on altruistic grounds.

  • A proposal for a new Data Act is expected later this year, fostering business-to-government data sharing for the public interest and supporting business-to-business data sharing, for example in relation to usage rights for co-generated data and Internet of Things data in industrial settings. The Data Act may address the possibility of imposing compulsory access to data in certain circumstances, such as sector-specific market failures which cannot be solved by competition law.

  • Network and cybersecurity are also critical to the EU achieving “digital sovereignty”. Together with European Union Agency for Cybersecurity (ENISA) initiatives, the Commission aims to strengthen a high common level of security of network and information systems with a proposal to revise the Networks and Information Systems Directive (NIS2). This update aims to add new sectors based on their criticality for the economy and society and will be applicable to providers of publicly available electronic communications services and networks. It also intends to eliminate the distinction between operators of essential services and digital service providers.

  • A horizontal regulatory proposal putting forward a European Approach to Artificial Intelligence has been tabled by the European Commission. The aim is to adopt an EU-wide framework to ensure legal certainty for both citizens and businesses, while avoiding fragmentation of the internal market. Given the specific characteristics of AI technologies, the new rules will focus on two areas where the use of AI is expected to entail higher risks: fundamental rights (including privacy and data protection), as well as safety and liability. Throughout the package, the Commission has aimed for a proportional and risk-based approach, based on the key assumption: ‘the higher the risk, the stricter the rules.’  

  • In addition, there are a number of initiatives underway that are designed to protect and foster EU investment, such as the EU White Paper on Foreign Subsidies. Finance and digital currency and payments form a core part of the EU Digital Finance Package. The Commission also recognises the importance of protecting intangible assets with its Intellectual Property Action Plan which is designed to improve IP protection, boost the uptake of IP by small businesses and facilitate access to and sharing of intangible assets, whilst ensuring a fair return on investment and effective enforcement.

  • Finally, the consumer lies at the heart of many of the EU’s proposals and the EU has an ambitious Consumer Agenda with sustainability, digital transformation, consumer rights and accessibility at its core, as well as the development of a European Digital Identity.
Bird & Bird experts are ready to advise and support companies and organisations in understanding the new digital regulatory landscape, how the various initiatives interact and mesh with the current legal framework, what opportunities it presents and what needs to be done to comply with the new rules.

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