Media, Sport & Entertainment Webinar Series 2015 Legal Developments in Video Games & Content for Children 3pm – 4pm GMT Wednesday 25 th March 2015

Introduction Wednesday 25th March Webinar - Video Games & Content For Children 2 Nick Fitzpatrick DLA Piper London

Speakers 3 Asger Heine Jensen Horten Copenhagen Richard Van Schaik DLA Piper Amsterdam Patrick Schwarzbart DLA Piper Munich Duncan Calow DLA Piper London Webinar - Video Games & Content For Children Wednesday 25th March Bikash Mishra Accenture

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Digital exhaustion - EU  Exhaustion of rights/"first sale" doctrine  EU: The impact of Usedsoft v Oracle (2012)  US: Comparison with Capitol Records v ReDigi (2013)  Further EU developments:  Nintendo v PC Box (2014)  Art & AllPosters v Pictoright (2015)  Potential for legislative reform Wednesday 25th March Webinar - Video Games & Content For Children 15

Digital exhaustion - Germany  Two important decisions in 2014, both by Regional Court Berlin  Concerning licence keys (Regional Court Berlin, 16 O 73/13):  If original copy was on physical media and licence key is sold without original physical copy, a different media is sold, i.e. no exhaustion and no applicability of UsedSoft-decision.  Further, UsedSoft only applicable to software. Video games also qualify as other types of work, i.e. InfoSoc-Directive applies, no exhaustion in case of non-physical dissemination.  Concerning user account (Regional Court Berlin (15 O 56/13):  It is not a violation of the exhaustion principle to restrict the sale/assignment of user accounts, regardless whether the original copy is disseminated physically or non-physically.  UsedSoft only applicable to software, see above Wednesday 25th March Webinar - Video Games & Content For Children 16

Consumer rights: digital - EU  EU Directive 2011/83 (Consumer Rights Directive)  Price transparency  No more pre-ticked boxes  Withdrawal right of 14 days  EU wide model withdrawal form  “Easier for businesses”  Maximum harmonisation Wednesday 25th March Webinar - Video Games & Content For Children 17

Consumer rights: digital - EU  Digital Content  meaning  withdrawal right  information obligations (including DRM)  factsheet by EC by December 2016  Access to website or downloading as such – outside scope Directive Wednesday 25th March Webinar - Video Games & Content For Children 18

Consumer rights: digital - Netherlands  Implementation in Civil Code  Wider scope than Directive?  Active regulator: fines up to EUR 450,000 Wednesday 25th March Webinar - Video Games & Content For Children 19

Consumer rights: digital - Denmark  Consumer Rights Directive implemented via Consumer Contracts Act of 17 December,  Applicable in respect of agreements concluded after 12 June,  Scope of consumer information requirements and withdrawal right.  If the marketing is done in Danish, the consumer information requirements are to be observed in Danish.  Outside the scope of the Consumer Rights Directive (the principle of total harmonization), the ancillary Danish legislation on marketing practices applies. Wednesday 25th March Webinar - Video Games & Content For Children 20

Consumer rights: digital - Germany  Consumer Rights Directive transposed under German law.  Right of revocation for digital products. Unclear which party is responsible in case of App Store and In-App purchases.  Heightened activity by consumer watchdog associations, in particular concerning fair terms of use.  Advertisements for video games using the "informal" second person (Du vs. Sie) together with direct exhortation to buy advertised product may be interpreted to be addressed at children (Federal Court of Justice), i.e. blacklisted unfair commercial practice. Wednesday 25th March Webinar - Video Games & Content For Children 21

Consumer rights: digital - UK  Consumer Rights Directive implemented via Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013  Consumer Rights Bill 2015  Office of Fair Trading investigation and publication of 8 principles for online and app-based games (now adopted by Competition and Markets Authority)  Advertising Standards Authority: free claims - apps & games Wednesday 25th March Webinar - Video Games & Content For Children 22

Children's content - Denmark  The Danish Marketing Act provides for special standard of care in respect of marketing directed at children and young people under the age of 18 years.  Factors to determine whether marketing is directed at children and young people.  Advertisements that include a direct invitation to children to buy is per se illegal (Black List).  The Consumer Ombudsman’s 2014 Guidance Paper.  Google’s and Apple’s recent agreements with EU on in-app purchases in online games triggered by enforcement initiative by the Danish Consumer Ombudsman. Wednesday 25th March Webinar - Video Games & Content For Children 23

Children's content - Germany  Recent developments regarding the Interstate Treaty on the Protection of Minors from Harmful Media.  General trends regarding the practice of the German rating board (USK). New guidelines for the evaluation of content. Video games as a work of art.  USK participation in IARC (International Age Rating Coalition). Wednesday 25th March Webinar - Video Games & Content For Children 24

Children's content - Netherlands  Children and Youth Code (“KJC’) 2013  Part of Dutch Advertising Code  Self regulatory (however: Consumer Authority may get involved)  ‘Child’: <12 yrs.  General rules:  Not misleading  Protection children  Social success  Recognizable  Personal data  Specific topics Wednesday 25th March Webinar - Video Games & Content For Children 25

Children's content – Netherlands (ii)  Specific rules digital environment  Banner/pop-up  Social media  Virtual world  (in) Game Not stimulating to promote Wednesday 25th March Webinar - Video Games & Content For Children 26

Children's content - UK  Byron Review (2008), Buckingham Review (2009), Bailey Review (2011)  Focus of OFT/CMA principles for online and app-based games  Advertising Standards Authority and Check.uk  Brand ambassadors  Social media regulation Wednesday 25th March Webinar - Video Games & Content For Children 27

Contact us 28 Asger Heine Jensen Horten Copenhagen Richard Van Schaik DLA Piper Amsterdam Patrick Schwarzbart DLA Piper Munich Duncan Calow DLA Piper London Webinar - Video Games & Content For Children Wednesday 25th March Bikash Mishra Accenture