Intellectual Property, Digital Technology and Data's legal and international news

Since the enactment of the Personal Information Protection Law (PIPL), enterprises anticipate that this new law may provide a solution to legitimize the cross-border transfer of personal information.

According to item 2 of Article 38 of the PIPL, when a controller needs to transfer personal information outside of China, it may choose to obtain an personal information protection certification issued by a professional institution in accordance with the relevant requirements set by the Cyberspace Administration of China.

Who are the relevant service providers in China? If so, are they qualified to meet Article 38 of the PIPL as personal data protection certification service providers? What is the scope of this draft standard and what are its requirements?

According to Zhang Beibei and Isabelle Doyon from our Shanghai office, a draft national standard released in late April 2022 provides some guidance.

Data, in its raw or unstructured form, has become a valuable economic asset, and its protection is a crucial subject for the intellectual property community. 

Alongside more than 40 AIPPI specialists from 23 countries worldwide, Catherine Verneret has written the chapter concerns the legal framework of raw data in France. Her chapter addresses topics such as :

• is there any intellectual property right available to protect raw data;
• the nature of such intellectual property rights;
• contracts on data and which legal boundaries stand in the way of contract drafting;
• liability for data products or services; and
• questions of international private law and cross-border portability.

To address the risk of personal data leakage, in 2021, China issued a series of laws, regulations and national standards on personal data: the Data Security Law and the Personal Information Protection Law (“PIPL”).

The PIPL enshrines the sensitive data status of health data and sets certain requirements for the processing of sensitive data, but without going into detail.

The National Standard “Information Security Technology-Guide for Health Data Security” (GB / T 39725-2020), which came into effect in July 2021, specifies these requirements.

Web crawlers (web spiders, web robots) are programs or scripts that automatically browse a website, grab information and build an index.

In our Data Economy, web crawlers permit companies to obtain and exploit large volumes of data which, once analyzed, can have a significant impact on their productivity and profitability.

The question is: Can web crawlers freely crawl any type of data from any website?

In this edition of our China newsletter, Zhang Beibei and Isabelle Doyon offer provide answers on the technical and legal limitations to the use of web crawlers.

[Corporate Law] –

 Following a decree promulgated on December 28th, 2020, the State Council issued a revised regulation on registering business names (the “Provisions”). These Provisions have come into effect on March 1st, 2021, with the purpose of standardizing business name registration, protecting the legitimate rights and interests of enterprises, maintaining social and economic order, and improving the business environment. 

Xu Sissi and Isabel Moga Rella provide the highlights of these Provisions. 

[Patents] –  Introduced in 1985 and revised three times, after eight years of discussions, the fourth revision of the Patent Law of the Republic of China will come into effect on 1 June 2021.

Sylvie Savoie and Chen Xiaoyun present the main changes in this new version.

A client recently asked a very interesting question relating to filing trademark applications internationally, namely, whether they can register all their trademarks as international trademarks instead of just Canadian trademarks?

The short answer is yes and no, you can register all of your marks wherever you want to use them, anywhere in the world.

However, at its base, trademark protection is national or regional in nature.

Nathaly J. Vermette breaks down how “international” or multi-jurisdictional trademark registrations work and what are some strategic considerations to take into account when deciding whether to use them.

With a view to bringing Singapore’s personal data protection landscape up to date and in line with international standards, Singapore passed the Personal Data Protection (Amendment) Act 2020 on 2 November 2020 (“PDPA Amendment”). 

The PDPA Amendment brings the most significant changes to the Personal Data Protection Act 2012 (“PDPA”) since the PDPA first came into force on 1 July 2014. 

The PDPA Amendment will take effect in phases. The following key changes took effect on 1 February 2021: 

• New mandatory data breach notification (new Part VIA) 
• New offences concerning mishandling of personal data 
• Changes to the consent framework 
• PDPA Amendment Regulations (in addition to the 2021 Data Breach Regulations, a set of regulations made under the PDPA Amendment also came into force on 1 February 2021)
• Right to data portability 

[Cosmetics] –  A new Cosmetics Supervision and Administration Regulation simplifies the rules that apply to registering and controlling cosmetic products sold in China.

This newsletter presents the main changes affecting cosmetics manufactured outside of China and imported into China for marketing purposes.

The rules that apply to domestic cosmetics are slightly different to those that apply to imported cosmetics.

A cosmetic product is considered to be imported if the last manufacturing stage involving contact with the product itself is carried out outside of China. Inversely, if this final stage is carried out within China, the product is considered to be a domestic product.

[E-commerce] –  Still unclear how to embark on a journey into Chinese e-commerce market? Still keep away from Chinese e-commerce?

Liu Yimin and Zhang Beibei share strategies that allow you to start a business in China’s e-commerce market.

In addition to the optional visa available for all issuers of Initial Coin Offerings, the French Pacte Law establishes a regulated status as a Digital Assets Service Provider or “DASP”.

As it stands, the implementing regulations have not yet been published and will come into force towards the end of 2019.

Avec Thibault Verbiest

Since the PACTE law came into force in France, a procedure for obtaining a visa for any public Initial Coin Offering has been provided for before the French Financial Markets Authority (the AMF).

In this context, the AMF requires issuers applying for a visa to set up a procedure to secure the funds collected during the ICO.

Avec Thibault Verbiest

The French law of 22 May 2019 (known as the “PACTE law“) introduced a specific regime for ICOs, providing for the principle of an optional approval/visa issued by the AMF. This new regime, designed to promote the development of ICOs, does not apply to the issuance of tokens assimilated to financial securities (“Security Token Offering”/ “STO”) but exclusively to the issuance of so-called “utility tokens”.

Issuers of tokens falling into the category of utility tokens have the right (but not the obligation) to apply for a visa in order to make an offer to the public of tokens. The AMF visa is not issued to a token issuer but to a token offer.

Avec Thibault Verbiest

Tokenisation is the creation of the digital representation of an asset on a blockchain.

The tokenisation process involves the registration of an asset and its rights on a digital token which is then recorded on a shared electronic recording device like blockchain.

The respective project leaders are the only ones who can decide on the asset they want to integrate into their security token. Like utility tokens, whose utility and economy must be carefully designed, it is necessary to create a security token that refers to an underlying asset.

Real estate tokenisation is an essential subject that affects a huge global market. Indeed, the real estate investment market is generating several trillion dollars each year and more than half of every asset held by individuals consists of at least one real estate asset.

Avec Thibault Verbiest

With the future French PACTE law, currently under discussion, the legislator wishes to create an incentivising legal environment for all crypto-active actors.

The French legislator’s approach is very clear: to identify the issues on which its intervention is necessary, particularly to protect investors, while at the same time allowing this new means of raising funds to prove its worth.

Indeed, while it was already announced that a legal framework would be put in place for token issuers (also known as “Initial Coin Offerings” – “ICOs”), a recent amendment aims to extend a broader framework to all crypto-active players.

The legislation is still evolving as amendments are adopted through parliamentary debates.

Avec Thibault Verbiest