Category: Global

USCIS Policies Lead to High Denial Rates for L-1B Petitions

The L-1B nonimmigrant visa program is regularly utilized by companies to transfer employees with specialized knowledge from foreign countries to the United States. According to a recent analysis, the program continues to experience significant denial rates, raising questions about the underlying causes of the phenomenon.

L1-B Visa Program

The L1-B Visa Program allows employers to transfer certain nonimmigrant employees from foreign offices to offices within the United States. Specifically, the employment-based nonimmigrant visa program allows the transfer of professional employees with specialized knowledge relating to the organization’s interests from foreign offices to the United States, sometimes even to establish a U.S. office. To qualify under the program, the employee must possess “specialized knowledge,” which, according to the U.S. Citizenship and Immigration Service (“USCIS”), requires knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests. USCIS evaluates L-1B petitions on a case-by-case basis.

In practice, L-1B petitions are filed by employers on behalf of their employees seeking intracompany transfer. While an employer may file an L-1B petition for an individual employee, larger companies may have the option to file a “blanket petition” so long as the company meets certain criteria. When petitioning for individual employees, the petition must be approved and then taken to a U.S. consulate for approval. For blanket petitions that have been approved, the employer need only submit a Form 129S, Nonimmigrant Petition Based on Blanket L Petition, which then may be taken to a consulate for approval.

High Denial Rates of L-1B Petitions

A recent article by Forbes analyzed government data concerning L-1B petitions and detailed their trends over the last decade. During that period, the average denial rate for L1-B petitions was 28.2%, a significant number, especially considering the denial rate for H-1B petitions averages under 5%. While the denial rate declined to 21.3% in the third quarter of the fiscal year 2021 and 20.7% in the fourth quarter, the denial rates were 32.7% and 33.3% respectively for the first two fiscal quarters of 2021.

Given that L-1B petitions appear to receive greater scrutiny than other business nonimmigrant visas, one must wonder what causes the denial rate, and what steps can be taken to ensure approval of such a petition.

Explanations for High L-1B Denial Rates

The unusually high denial rate for L-1B petitions could be explained in part by the high bar set by USCIS in adjudicating the petitions. However, at least one attorney noted the case-by-case nature of the petitions do not easily lend itself to a simple adjudication process, noting that “USCIS applies [the standard] in a way that favors documentary evidence while discounting the company’s own assessments of the worker’s importance and knowledge […]” While the USCIS Policy Manual provides immigration officers with some guidance, more comprehensive guidance could certainly be helpful.

In response to the investigation conducted by Forbes, USCIS commented,

“USCIS officers review each L-1B petition on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies. […] The agency will continue to solicit feedback from stakeholders to identify procedural efficiencies and promote policies that break down barriers in the lawful immigration system.”

Additionally, the denial rate can be attributed at least in part to the political implications of the executive branch. For the fiscal year 2021, the improvement that can be detected in the L-1B denial rate followed President Biden’s assumption of office. This shift may be attributed not to a more liberal implementation of policy, but rather to the reinstatement of the USCIS policy of giving deference to previous decisions. This deference does not extend to petitions or applications made by Customs and Border Protection (“CBP”) or Department of State (“DOS”) officials.

The high denial rate for L-1B petitions serves to frustrate employers, and even discourages foreign investment in the United States. While the petitions continue to receive increased scrutiny, it is advisable to take the utmost care in the preparation of applications and ensure that all are supported with sufficient evidence and documentation.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2022 Norris McLaughlin P.A., All Rights Reserved

New UK IDTA and Addendum Come Into Force

The new UK International Data Transfer Agreement (“IDTA”) and Addendum to the new 2021 EU Standard Contract Clauses (“New EU SCCs”) are now in force (as of the 21 March 2022), providing much needed certainty for UK organisations transferring personal data to service providers and group companies based outside of the UK/EEA.

The IDTA and Addendum replace the old EU Standard Contractual Clauses  (“Old EU SCCs”) for use as a UK GDPR-compliant transfer tool for restricted transfers from the UK, which also enables UK data exporters to comply with the European Court of Justice’s ‘Schrems II’ judgement.

For new UK data transfer arrangements or where UK organisations are in the process of reviewing their existing arrangements, use of the new ITDA or Addendum would be the best option to seek to future proof against the need to replace them in 2 years’ time.

Where the data flows involve transfers of personal data from both the UK and the EU, the use of the Addendum alongside the New EU SCCs, will enable organisations to implement a more harmonised solution.

To view copies of the documents please follow the links below:

To read our previous blog post on this topic, click here.

Article By Francesca Fellowes of Squire Patton Boggs (US) LLP. Hannah-Mei Grisley also contributed to this article.

For more data privacy legal news, click here to visit the National Law Review.

© Copyright 2022 Squire Patton Boggs (US) LLP

Fleeing Ukrainians to Get More Help From United States

The United States has joined many European countries that are opening their doors and offering humanitarian assistance to fleeing Ukrainians.

Ireland, Great Britain and Canada have all started private sponsorship programs for Ukrainians. That assistance is not necessarily a one-way street. Easing the way for incoming Ukrainians may help those nations deal with their own labor shortages.

Ukraine is known for its skilled workforce, including tech engineers, and some companies in Europe are specifically targeting jobs for Ukrainians, offering everything from language training to child care to attract the refugees. Even temporary employment agencies are involved and new companies are being founded for the purpose of matching Ukrainians to jobs across Europe – jobs that run the gamut from highly skilled tech work, to healthcare aids, to retail and hospitality positions.

U.S. employers are generously offering humanitarian aid and donations to help Ukrainian refugees, but now those employers may be able to offer jobs to displaced Ukrainians seeking refuge. The Biden Administration will open various legal pathways that could include the refugee admissions program (which can lead to permanent residence through asylum, but is a long process), visas, and humanitarian parole (a temporary solution). The focus will be on Ukrainians with family in the United States or others considered to be particularly vulnerable. Approximately 1,000,000 people of Ukrainian descent currently live in the United States.

The administration originally believed that most Ukrainians did not want to flee to the United States because it was too far away from other family members who have remained in Ukraine. Secretary of State Antony Blinken had stated that the priority was to help European countries who are the dealing with huge waves for migration instead. But advocates have been arguing that the administration could create special status for Ukrainians to allow them to enter the U.S. or stay with family members.

In early March, the Biden Administration established Temporary Protected Status (TPS) for Ukrainians who have been in the United States continuously since March 1, 2022, but that did not help those who are still abroad. Visitor visas are hard to come by because applicants for visitor visas need to be able to show that their stay will be temporary and that they have a home to return to in Ukraine, and such temporary nonimmigrant visas may not meet that criterion or be practical in most of these situations. Moreover, consulates abroad are already overwhelmed and understaffed due to COVID-19.

While small numbers of Ukrainians have made it to the United States by finding private or family sponsors, this new policy should at least open the doors to some Ukrainians and likely make it possible for U.S. companies to hire some of the incoming refugees. They will need and want employment, but they will also need support.

Article By Forrest G. Read IV of Jackson Lewis P.C.

For more immigration-related legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

EDPB on Dark Patterns: Lessons for Marketing Teams

“Dark patterns” are becoming the target of EU data protection authorities, and the new guidelines of the European Data Protection Board (EDPB) on “dark patterns in social media platform interfaces” confirm their focus on such practices. While they are built around examples from social media platforms (real or fictitious), these guidelines contain lessons for all websites and applications. The bad news for marketers: the EDPB doesn’t like it when dry legal texts and interfaces are made catchier or more enticing.

To illustrate, in a section of the guidelines regarding the selection of an account profile photo, the EDPB considers the example of a “help/information” prompt saying “No need to go to the hairdresser’s first. Just pick a photo that says ‘this is me.’” According to the EDPB, such a practice “can impact the final decision made by users who initially decided not to share a picture for their account” and thus makes consent invalid under the General Data Protection Regulation (GDPR). Similarly, the EDPB criticises an extreme example of a cookie banner with a humourous link to a bakery cookies recipe that incidentally says, “we also use cookies”, stating that “users might think they just dismiss a funny message about cookies as a baked snack and not consider the technical meaning of the term “cookies.”” The EDPB even suggests that the data minimisation principle, and not security concerns, should ultimately guide an organisation’s choice of which two-factor authentication method to use.

Do these new guidelines reflect privacy paranoia or common sense? The answer should lie somewhere in between, but the whole document (64 pages long) in our view suggests an overly strict approach, one that we hope will move closer to commonsense as a result of a newly started public consultation process.

Let us take a closer look at what useful lessons – or warnings – can be drawn from these new guidelines.

What are “dark patterns” and when are they unlawful?

According to the EDPB, dark patterns are “interfaces and user experiences […] that lead users into making unintended, unwilling and potentially harmful decisions regarding the processing of their personal data” (p. 2). They “aim to influence users’ behaviour and can hinder their ability to effectively protect their personal data and make conscious choices.” The risk associated with dark patterns is higher for websites or applications meant for children, as “dark patterns raise additional concerns regarding potential impact on children” (p. 8).

While the EDPB takes a strongly negative view of dark patterns in general, it recognises that dark patterns do not automatically lead to an infringement of the GDPR. The EDPB acknowledges that “[d]ata protection authorities are responsible for sanctioning the use of dark patterns if these breach GDPR requirements” (emphasis ours; p. 2). Nevertheless, the EDPB guidance strongly links the concept of dark patterns with the data protection by design and by default principles of Art. 25 GDPR, suggesting that disregard for those principles could lead to a presumption that the language or a practice in fact creates a “dark pattern” (p. 11).

The EDPB refers here to its Guidelines 4/2019 on Article 25 Data Protection by Design and by Default and in particular to the following key principles:

  • “Autonomy – Data subjects should be granted the highest degree of autonomy possible to determine the use made of their personal data, as well as autonomy over the scope and conditions of that use or processing.
  • Interaction – Data subjects must be able to communicate and exercise their rights in respect of the personal data processed by the controller.
  • Expectation – Processing should correspond with data subjects’ reasonable expectations.
  • Consumer choice – The controllers should not “lock in” their users in an unfair manner. Whenever a service processing personal data is proprietary, it may create a lock-in to the service, which may not be fair, if it impairs the data subjects’ possibility to exercise their right of data portability in accordance with Article 20 GDPR.
  • Power balance – Power balance should be a key objective of the controller-data subject relationship. Power imbalances should be avoided. When this is not possible, they should be recognised and accounted for with suitable countermeasures.
  • No deception – Data processing information and options should be provided in an objective and neutral way, avoiding any deceptive or manipulative language or design.
  • Truthful – the controllers must make available information about how they process personal data, should act as they declare they will and not mislead data subjects.”

Is data minimisation compatible with the use of SMS two-factor authentication?

One of the EDPB’s positions, while grounded in the principle of data minimisation, undercuts a security practice that has grown significantly over the past few years. In effect, the EDPB seems to question the validity under the GDPR of requests for phone numbers for two-factor authentication where e-mail tokens would theoretically be possible:

“30. To observe the principle of data minimisation, [organisations] are required not to ask for additional data such as the phone number, when the data users already provided during the sign- up process are sufficient. For example, to ensure account security, enhanced authentication is possible without the phone number by simply sending a code to users’ email accounts or by several other means.
31. Social network providers should therefore rely on means for security that are easier for users to re[1]initiate. For example, the [organisation] can send users an authentication number via an additional communication channel, such as a security app, which users previously installed on their mobile phone, but without requiring the users’ mobile phone number. User authentication via email addresses is also less intrusive than via phone number because users could simply create a new email address specifically for the sign-up process and utilise that email address mainly in connection with the Social Network. A phone number, however, is not that easily interchangeable, given that it is highly unlikely that users would buy a new SIM card or conclude a new phone contract only for the reason of authentication.” (emphasis ours; p. 15)

The EDPB also appears to be highly critical of phone-based verification in the context of registration “because the email address constitutes the regular contact point with users during the registration process” (p. 15).

This position is unfortunate, as it suggests that data minimisation may preclude controllers from even assessing which method of two-factor authentication – in this case, e-mail versus SMS one-time passwords – better suits its requirements, taking into consideration the different security benefits and drawbacks of the two methods. The EDPB’s reasoning could even be used to exclude any form of stronger two-factor authentication, as additional forms inevitably require separate processing (e.g., phone number or third-party account linking for some app-based authentication methods).

For these reasons, organisations should view this aspect of the new EDPB guidelines with a healthy dose of skepticism. It likewise will be important for interested stakeholders to participate in the consultation to explain the security benefits of using phone numbers to keep the “two” in two-factor authentication.

Consent withdrawal: same number of clicks?

Recent decisions by EU regulators (notably two decisions by the French authority, the CNIL have led to speculation about whether EU rules effectively require website operators to make it possible for data subjects to withdraw consent to all cookies with one single click, just as most websites make it possible to give consent through a single click. The authorities themselves have not stated that this is unequivocally required, although privacy activists notably filed complaints against hundreds of websites, many of them for not including a “reject all” button on their cookie banner.

The EDPB now appears to side with the privacy activists in this respect, stating that “consent cannot be considered valid under the GDPR when consent is obtained through only one mouse-click, swipe or keystroke, but the withdrawal takes more steps, is more difficult to achieve or takes more time” (p. 14).

Operationally, however, it seems impossible to comply with a “one-click withdrawal” standard in absolute terms. Just pulling up settings after registration or after the first visit to a website will always require an extra click, purely to open those settings. We expect this issue to be examined by the courts eventually.

Is creative wording indicative of a “dark pattern”?

The EDPB’s guidelines contain several examples of wording that is intended to convince the user to take a specific action.

The photo example mentioned in the introduction above is an illustration, but other (likely fictitious) examples include the following:

  • For sharing geolocation data: “Hey, a lone wolf, are you? But sharing and connecting with others help make the world a better place! Share your geolocation! Let the places and people around you inspire you!” (p.17)
  • To prompt a user to provide a self-description: “Tell us about your amazing self! We can’t wait, so come on right now and let us know!” (p. 17)

The EDPB criticises the language used, stating that it is “emotional steering”:

“[S]uch techniques do not cultivate users’ free will to provide their data, since the prescriptive language used can make users feel obliged to provide a self-description because they have already put time into the registration and wish to complete it. When users are in the process of registering to an account, they are less likely to take time to consider the description they give or even if they would like to give one at all. This is particularly the case when the language used delivers a sense of urgency or sounds like an imperative. If users feel this obligation, even when in reality providing the data is not mandatory, this can have an impact on their “free will”” (pp. 17-18).

Similarly, in a section about account deletion and deactivation, the EDPB criticises interfaces that highlight “only the negative, discouraging consequences of deleting their accounts,” e.g., “you’ll lose everything forever,” or “you won’t be able to reactivate your account” (p. 55). The EDPB even criticises interfaces that preselect deactivation or pause options over delete options, considering that “[t]he default selection of the pause option is likely to nudge users to select it instead of deleting their account as initially intended. Therefore, the practice described in this example can be considered as a breach of Article 12 (2) GDPR since it does not, in this case, facilitate the exercise of the right to erasure, and even tries to nudge users away from exercising it” (p. 56). This, combined with the EDPB’s aversion to confirmation requests (see section 5 below), suggests that the EDPB is ignoring the risk that a data subject might opt for deletion without fully recognizing the consequences, i.e., loss of access to the deleted data.

The EDPB’s approach suggests that any effort to woo users into giving more data or leaving data with the organisation will be viewed as harmful by data protection authorities. Yet data protection rules are there to prevent abuse and protect data subjects, not to render all marketing techniques illegal.

In this context, the guidelines should in our opinion be viewed as an invitation to re-examine marketing techniques to ensure that they are not too pushy – in the sense that users would in effect truly be pushed into a decision regarding personal data that they would not otherwise have made. Marketing techniques are not per se unlawful under the GDPR but may run afoul of GDPR requirements in situations where data subjects are misled or robbed of their choice.

Other key lessons for marketers and user interface designers

  • Avoid continuous prompting: One of the issues regularly highlighted by the EDPB is “continuous prompting”, i.e., prompts that appear again and again during a user’s experience on a platform. The EDPB suggests that this creates fatigue, leading the user to “give in,” i.e., by “accepting to provide more data or to consent to another processing, as they are wearied from having to express a choice each time they use the platform” (p. 14). Examples given by the EDPB include the SMS two-factor authentication popup mentioned above, as well as “import your contacts” functionality. Outside of social media platforms, the main example for most organisations is their cookie policy (so this position by the EDPB reinforces the need to manage cookie banners properly). In addition, newsletter popups and popups about “how to get our new report for free by filling out this form” are frequent on many digital properties. While popups can be effective ways to get more subscribers or more data, the EDPB guidance suggests that regulators will consider such practices questionable from a data protection perspective.
  • Ensure consistency or a justification for confirmation steps: The EDPB highlights the “longer than necessary” dark pattern at several places in its guidelines (in particular pp. 18, 52, & 57), with illustrations of confirmation pop-ups that appear before a user is allowed to select a more privacy-friendly option (and while no such confirmation is requested for more privacy-intrusive options). Such practices are unlawful according to the EDPB. This does not mean that confirmation pop-ups are always unlawful – just that you need to have a good justification for using them where you do.
  • Have a good reason for preselecting less privacy-friendly options: Because the GDPR requires not only data protection by design but also data protection by default, make sure that you are able to justify an interface in which a more privacy-intrusive option is selected by default – or better yet, don’t make any preselection. The EDPB calls preselection of privacy-intrusive options “deceptive snugness” (“Because of the default effect which nudges individuals to keep a pre-selected option, users are unlikely to change these even if given the possibility” p. 19).
  • Make all privacy settings available in all platforms: If a user is asked to make a choice during registration or upon his/her first visit (e.g., for cookies, newsletters, sharing preferences, etc.), ensure that those settings can all be found easily later on, from a central privacy settings page if possible, and alongside all data protection tools (such as tools for exercising a data subject’s right to access his/her data, to modify data, to delete an account, etc.). Also make sure that all such functionality is available not only on a desktop interface but also for mobile devices and across all applications. The EDPB illustrates this point by criticising the case where an organisation has a messaging app that does not include the same privacy statement and data subject request tools as the main app (p. 27).
  • Be clearer in using general language such as “Your data might be used to improve our services”: It is common in most privacy statements to include a statement that personal data (e.g., customer feedback) “can” or “may be used” to improve an organisation’s products and services. According to the EDPB, the word “services” is likely to be “too general” to be viewed as “clear,” and it is “unclear how data will be processed for the improvement of services.” The use of the conditional tense in the example (“might”) also “leaves users unsure whether their data will be used for the processing or not” (p. 25). Given that the EDPB’s stance in this respect is a confirmation of a position taken by EU regulators in previous guidance on transparency, and serves as a reminder to tell data subjects how data will be used.
  • Ensure linguistic consistency: If your website or app is available in more than one language, ensure that all data protection notices and tools are available in those languages as well and that the language choice made on the main interface is automatically taken into account on the data-related pages (pp. 25-26).

Best practices according to the EDPB

Finally, the EDPB highlights some other “best practices” throughout its guidelines. We have combined them below for easier review:

  • Structure and ease of access:
    • Shortcuts: Links to information, actions, or settings that can be of practical help to users to manage their data and data protection settings should be available wherever they relate to information or experience (e.g., links redirecting to the relevant parts of the privacy policy; in the case of a data breach communication to users, to provide users with a link to reset their password).
    • Data protection directory: For easy navigation through the different section of the menu, provide users with an easily accessible page from where all data protection-related actions and information are accessible. This page could be found in the organisation’s main navigation menu, the user account, through the privacy policy, etc.
    • Privacy Policy Overview: At the start/top of the privacy policy, include a collapsible table of contents with headings and sub-headings that shows the different passages the privacy notice contains. Clearly identified sections allow users to quickly identify and jump to the section they are looking for.
    • Sticky navigation: While consulting a page related to data protection, the table of contents could be constantly displayed on the screen allowing users to quickly navigate to relevant content thanks to anchor links.
  • Transparency:
    • Organisation contact information: The organisation’s contact address for addressing data protection requests should be clearly stated in the privacy policy. It should be present in a section where users can expect to find it, such as a section on the identity of the data controller, a rights related section, or a contact section.
    • Reaching the supervisory authority: Stating the specific identity of the EU supervisory authority and including a link to its website or the specific website page for lodging a complaint is another EDPB recommendation. This information should be present in a section where users can expect to find it, such as a rights-related section.
    • Change spotting and comparison: When changes are made to the privacy notice, make previous versions accessible with the date of release and highlight any changes.
  • Terminology & explanations:
    • Coherent wording: Across the website, the same wording and definition is used for the same data protection concepts. The wording used in the privacy policy should match that used on the rest of the platform.
    • Providing definitions: When using unfamiliar or technical words or jargon, providing a definition in plain language will help users understand the information provided to them. The definition can be given directly in the text when users hover over the word and/or be made available in a glossary.
    • Explaining consequences: When users want to activate or deactivate a data protection control, or give or withdraw their consent, inform them in a neutral way of the consequences of such action.
    • Use of examples: In addition to providing mandatory information that clearly and precisely states the purpose of processing, offering specific data processing examples can make the processing more tangible for users
  • Contrasting Data Protection Elements: Making data protection-related elements or actions visually striking in an interface that is not directly dedicated to the matter helps readability. For example, when posting a public message on the platform, controls for geolocation should be directly available and clearly visible.
  • Data Protection Onboarding: Just after the creation of an account, include data protection points within the onboarding experience for users to discover and set their preferences seamlessly. This can be done by, for example, inviting them to set their data protection preferences after adding their first friend or sharing their first post.
  • Notifications (including data breach notifications): Notifications can be used to raise awareness of users of aspects, changes, or risks related to personal data processing (e.g., when a data breach occurs). These notifications can be implemented in several ways, such as through inbox messages, pop-in windows, fixed banners at the top of the webpage, etc.

Next steps and international perspectives

These guidelines (available online) are subject to public consultation until 2 May 2022, so it is possible they will be modified as a result of the consultation and, we hope, improved to reflect a more pragmatic view of data protection that balances data subjects’ rights, security, and operational business needs. If you wish to contribute to the public consultation, note that the EDPB publishes feedback it receives (as a result, we have occasionally submitted feedback on behalf of clients wishing to remain anonymous).

Irrespective of the outcome of the public consultation, the guidelines are guaranteed to have an influence on the approach of EU data protection authorities in their investigations. From this perspective, it is better to be forewarned – and to have legal arguments at your disposal if you wish to adopt an approach that deviates from the EDPB’s position.

Moreover, these guidelines come at a time when the United States Federal Trade Commission (FTC) is also concerned with dark patterns. The FTC recently published an enforcement policy statement on the matter in October 2021. Dark patterns are also being discussed at the Organisation for Economic Cooperation and Development (OECD). International dialogue can be helpful if conversations about desired policy also consider practical solutions that can be implemented by businesses and reflect a desirable user experience for data subjects.

Organisations should consider evaluating their own techniques to encourage users to go one way or another and document the justification for their approach.

Article By Peter Craddock, Sheila A. Millar, and Tracy P. Marshall of Keller and Heckman LLP

For more cybersecurity legal news, click here to visit the National Law Review.

© 2022 Keller and Heckman LLP

“Levitating” Lawsuits: Understanding Dua Lipa’s Copyright Infringement Troubles

Even global stardom will not make copyright woes levitate away from British superstar Dua Lipa. The pop icon is making headlines following a week of back-to-back, bi-coastal lawsuits alleging copyright infringement with her hit “Levitating.” First, on Tuesday, March 1st, members of reggae band Artikal Sound System sued Dua Lipa for copyright infringement in a Los Angeles federal district court1. Then, on Friday, March 4th, songwriters L. Russell Brown and Sandy Linzer filed their own copyright infringement lawsuit against the pop star in a New York federal district court2. Both lawsuits were filed claiming violations of the Copyright Act, 17 U.S.C. §§ 101 et seq.3

The Artikal Sound System lawsuit is short and alleges that Dua Lipa and the co-creators of “Levitating” copied Artikal Sound System’s 2017 song “Live Your Life.”4 The lawsuit does not provide any details in the allegation, other than explaining that “Live Your Life” was commercially released in 2017, was available during the time Dua Lipa and her co-creators wrote “Levitating,” and that because the two songs are substantially similar “Levitating” could not have been created independently.5 As a remedy, Artikal Sound System seeks actual damages, a portion of Dua Lipa’s profits stemming from the alleged infringement, the cost of the lawsuit, and any additional remedies the Court sees fit.6

Similarly, the Brown and Linzer lawsuit alleges that Dua Lipa and her “Levitating” co-creators copied their works “Wiggle and Giggle All Night” and “Don Diablo.”7 More specifically, the Brown and Linzer lawsuit alleges that “Levitating” is substantially similar to “Wiggle and Giggle All Night” and “Don Diablo.”8

Accordingly, the lawsuit claims that the defining melody in “Levitating,” the “signature melody,” is a direct duplicate of the opening melody in “Wiggle and Giggle All Night” and “Don Diablo,” and therefore appears in all three songs.9 As additional support, the lawsuit points to professionals and laypersons noticing a similarity between the three songs, and Dua Lipa previously admitting that she “purposely sought influences from past eras for the album Future Nostalgia.”10

As for a remedy, Brown and Linzer request full compensatory and/or statutory damages, punitive damages, an injunction on “Levitating,” a portion of Dua Lipa’s profits stemming from the alleged infringement, the cost of the lawsuit, and any additional remedies the Court sees fit.11

The copyright infringement legal framework

A general overview of the copyright infringement legal framework is helpful in assessing the potential outcomes of the “Levitating” lawsuits. Specifically, the legal framework from the 9th Circuit, where one of the “Levitating” lawsuits was filed, provides great guidance.

In order to establish copyright infringement, one must prove two elements: owning a valid copyright and copying of “constituent elements of the work that are original.”12 Importantly, when there is no direct evidence of copying, but rather circumstantial evidence, plaintiffs must show that:

  1. the accused infringers had access to the copyrighted work, and

  2. the infringing work and the copyrighted work “are substantially similar.

Plaintiffs can easily show access to the copyrighted work, but “substantial similarity” is harder to show.

2-Part Test

Luckily, the 9th Circuit devised a 2-part test to prove “substantial similarity.”13 Under the test, there is sufficient copying, and therefore “substantial similarity,” if an infringing work meets an “extrinsic” and “intrinsic” prong.14 The intrinsic prong is met if there is “similarity of expression” between the works, as evaluated from the subjective standpoint of an “ordinary reasonable observer.”15 The extrinsic prong is objective and requires comparing the “constituent elements” of the copyrighted and infringing works to see if there is substantial similarity in terms of the “protected” elements in the copyrighted work.16

As such, if the commonality between the copyrighted and infringing works is not based on “protected” elements, then the extrinsic prong is not met, and there is no “substantial similarity” between the works for purposes of a copyright infringement action. It must be noted that the 9th Circuit recognizes that, in certain situations, there can be a “substantial similarity” even if the constituent elements are individually unprotected, but only if their “selection and arrangement” reflects originality.17

To understand “substantial similarity” one must define what is “protectable” under copyright law. Copyright protection extends only to works that contain original expression.18 In this context, the standard for originality is a minimal degree of creativity.19 According to the Copyright Act, protection does not extend to ideas or concepts used in original works of authorship.20 In the musical context, copyright does not protect “common or trite musical elements, or commonplace elements that are firmly rooted in the genre’s tradition” because “[t]hese building blocks belong in the public domain and cannot be exclusively appropriated by any particular author.”21

Katy Perry “Dark Horse” case and an ostinato

While the “Levitating” lawsuits are still young, a recent decision by the 9th Circuit in the infamous Katy Perry “Dark Horse” case is a good example of how courts conduct legal analyses in copyright infringement cases. The precedential ruling (Gray v. Hudson), released on March 10th, affirms a U.S. District Judge’s decision to vacate a jury verdict that awarded US$2.8 million in damages to a group of rappers who claimed Katy Perry’s “Dark Horse” copied their song “Joyful Noise.”22

The 9th Circuit’s opinion cogently applies copyright law to hold that the plaintiffs in the original lawsuit did not provide legally sufficient evidence that “Joyful Noise” and “Dark Horse” were “extrinsically similar” in terms of musical features protected by copyright law.23

Specifically, the Court reasoned that while “Dark Horse” used an ostinato (a repeating musical figure) similar to the one in “Joyful Noise,” the resemblance in the ostinatos stemmed from “commonplace, unoriginal musical principles” and made them uncopyrightable.24 Without the ostinatos, the plaintiffs could not point to any “individually copyrightable” elements from “Joyful Noise” that were “substantially similar” in “Dark Horse.”25

Additionally, the Court held that the “Joyful Noise” ostinato was not original enough to be a protectable combination of uncopyrightable elements.26 In turn, under the legal framework for copyright infringement the plaintiffs failed to meet their burden.27 The Court put it best by opining that:

“[a]llowing a copyright over [the] material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself, especially in light of the limited number of expressive choices available when it comes to an eight-note repeated musical figure.”28

“Levitating” lawsuits likely outcomes

Applying the copyright infringement framework to the “Levitating” lawsuits allows us to understand the likely outcomes. First, the Artikal Sound System lawsuit does not allege any direct evidence of copying. As such, Artikal Sound System must show that Dua Lipa had access to “Live Your Life” and that “Levitating” is “substantially similar” to their song under the 2-prong test. Access is easily proved, as “Live Your Life” was commercially available on multiple streaming services when Dua Lipa wrote “Levitating.”29

However, the Artikal Sound System lawsuit does not provide enough information to pass the 2-prong “substantial similarity” test. The lawsuit only alleges that “Levitating” is “substantially similar” to “Live Your Life,” but does not detail any similarities much less provide any evidence that there is similarity of expression between the works from the point of view of a reasonable observer, as required by the intrinsic component of the test.30

More importantly, the lawsuit does not even mention any protectable elements from “Live Your Life” copied in “Levitating” and would, therefore, fail the extrinsic prong of the “substantial similarity” test.31 In turn, as submitted, the Artikal Sound System lawsuit fails to make a prima facie case of copyright infringement by Dua Lipa’s “Levitating.”

The story may be different for the Brown and Linzer lawsuit. Like the first suit, the Brown and Linzer lawsuit does not provide direct evidence of copying and will therefore only succeed if it passes the circumstantial evidence requirements of 1) access and 2) “substantial similarity.” Unlike the first suit, however, the Brown and Linzer complaint includes comparisons of the notes in “Levitating” to the notes in “Wiggle and Giggle All Night” and “Don Diablo” as support for the allegation of “substantial similarity.”

The 2nd Circuit, where the lawsuit was filed, held that a court can determine as a matter of law that two works are not “substantially similar” if the similarity between the two works concerns non-copyrightable elements of the copyrighted work.32 In practice, this means that the 2nd Circuit can apply the 2-prong “substantial similarity” test. Brown and Linzer can easily prove access to “Wiggle and Giggle All Night” and “Don Diablo” since both songs are internationally popular.33

Brown and Linzer can also meet the intrinsic prong of the test because, as they point out, “laypersons” (ordinary reasonable observers) have noticed the commonality between their copyrighted works and “Levitating,” as supported by widespread postings on mediums like TikTok.34 The extrinsic prong of the test is more uncertain.

In their lawsuit, Brown and Linzer point to a “signature melody” that repeats in “bars 10 and 11 of all three songs… [and] with some slight variation, in bars 12 and 13.”35 The court may find that this “signature melody” is not protected by copyright if it reasons that a melody is a basic musical principle, much like the 9th Circuit did for ostinatos in the Katy Perry “Dark Horse” case.

At its core, it seems like Brown and Linzer will have to convince the court that a melody, which they define as “a linear succession of musical tones,” qualifies as copyrightable because it is an original creative expression. Conversely, Brown and Linzer can concede that a melody is not copyrightable, but that their original arrangement and use of the melody in their copyrighted songs is copyrightable. In the end, it will be up to whether or not a court finds that the “signature melody” is copyrightable. As such, the outcome of Brown and Linzer’s action for copyright infringement is uncertain.

Nonetheless, one thing is for sure, copied or not, “Levitating” will continue powering gym visits and nights out dancing.

Footnotes

  1. See Complaint, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  2. See Complaint, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  3. See Complaint at ¶ 7, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022); Complaint at ¶ 12, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  4. See Complaint at ¶ 17, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  5. See Complaint at ¶ 15-18, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  6. See Complaint at ¶ 19-22, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  7. See Complaint at ¶ 2, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  8. See Complaint at ¶ 2, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  9. See Complaint at ¶ 3, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  10. See Complaint at ¶ 49, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  11. See Complaint at 13-14, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  12. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

  13. Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994).

  14. Id.

  15. Id.

  16. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).

  17. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).

  18. See 17 U.S.C. § 102(a); Feist, 499 U.S. at 345.

  19. See Feist, 499 U.S. at 345.

  20. See 17 U.S.C. § 102(b); Skidmore as Tr. for the Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) (en banc).

  21. Skidmore, 952 F.3d at 1069.

  22. Gray v. Hudson, No. 20-55401, slip op at 26 (9th Cir. Mar. 10, 2022).

  23. Id.

  24. Id. at 14-21.

  25. Id. at 17.

  26. Id. at 22.

  27. Id. at 26.

  28. Id. at 24.

  29. See Complaint at ¶ 16, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  30. See Complaint at ¶ 18, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  31. See Complaint at ¶ 18, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).

  32. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63-65 (2d Cir. 2010).

  33. See Complaint at ¶ 35, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  34. See Complaint at ¶ 4, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

  35. See Complaint at ¶ 38, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).

Article By Adrian Gonzalez Cerrillo and Sana Hakim of K&L Gates

For more intellectual property legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates

Google to Launch Google Analytics 4 in an Attempt to Address EU Privacy Concerns

On March 16, 2022, Google announced the launch of its new analytics solution, “Google Analytics 4.” Google Analytics 4 aims, among other things, to address recent developments in the EU regarding the use of analytics cookies and data transfers resulting from such use.

Background

On August 17, 2020, the non-governmental organization None of Your Business (“NOYB”) filed 101 identical complaints with 30 European Economic Area data protection authorities (“DPAs”) regarding the use of Google Analytics by various companies. The complaints focused on whether the transfer of EU personal data to Google in the U.S. through the use of cookies is permitted under the EU General Data Protection Regulation (“GDPR”), following the Schrems II judgment of the Court of Justice of the European Union. Following these complaints, the French and Austrian DPAs ruled that the transfer of EU personal data from the EU to the U.S. through the use of the Google Analytics cookie is unlawful.

Google’s New Solution

According to Google’s press release, Google Analytics 4 “is designed with privacy at its core to provide a better experience for both our customers and their users. It helps businesses meet evolving needs and user expectations, with more comprehensive and granular controls for data collection and usage.”

The most impactful change from an EU privacy standpoint is that Google Analytics 4 will no longer store IP address, thereby limiting the data transfers resulting from the use of Google Analytics that were under scrutiny in the EU following the Schrems II ruling. It remains to be seen whether this change will ease EU DPAs’ concerns about Google Analytics’ compliance with the GDPR.

Google’s previous analytics solution, Universal Analytics, will no longer be available beginning July 2023. In the meantime, companies are encouraged to transition to Google Analytics 4.

Read Google’s press release.

Article By Privacy and Cybersecurity Practice Group at Hunton Andrews Kurth

For more cybersecurity legal news, click here to visit the National Law Review. 

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

UAE Employment Law Update

2 February 2022 saw the introduction of a new UAE Labour Law in the form of UAE Federal Law No. 33 of 2021, Regulating Labour Relations (“New Law”), repealing the existing UAE Labour Law, UAE Federal Law No. 8 of 1980 as amended (“Previous Law”).  In addition to the introduction of the New Law, a set of companion Executive Regulations were issued on 3 February 2022, fleshing out certain provisions of the New Law.

The following is a non-exhaustive overview of the principal provisions of the New Law and the Executive Regulations.

Whilst the New Law makes several significant introductions, it equally maintains the status quo in others, as such what we see here is more evolution rather than revolution in terms of the regulation of employment relations governed by the New Law.

As with the Previous Law, the New Law does not apply to employees in the Dubai International Financial Centre or the Abu Dhabi Global Market which both have their own standalone employment laws and regulations.  In addition, employees of federal and local government agencies, members of the armed forces, police and security employees and domestic service workers (Article 3(2) of the New Law) are not subject to the New Law.

  1. Employment Arrangements

The New Law and Executive Regulations (Article 5) introduces the following models of work:

  1. Full time – working for a single employer full time;
  2. Part time – working for a single employer part time;
  3. Temporary work – work carried out for a specified time and for a specific task;
  4. Flexible work – work that allows changing work hours to take into account operational needs of an employer;
  5. Remote work – work that is performed outside of the workplace and which may be either full time or part time; and
  6. Job sharing – work is divided between one or more employees on a part time basis.

Furthermore, the Executive Regulations provide that additional employment arrangements can be introduced based on labour market demands.

  1. Work Permits

The Executive Regulations (Article 6) stipulates the types of work permits available and the corresponding processes for obtaining, renewing and cancelling the same are as set in Article 7 of the Executive Regulations:

  1. Work permits for recruitment for employee’s outside of the UAE;
  2. Transfer work permit allowing a non-UAE national’s employment to be transferred between establishments registered with the Ministry of Human Resources and Emiratisation (“MOHRE”/“Ministry”);
  3. Relative work permit allowing a person who is on the residence visa of a family member to work for an employer registered with the MOHRE;
  4. A temporary work permit for where an employer is employed for a job whose performance or completion requires a specified period;
  5. A task work / mission permit allowing for an employer to bring an employee from outside of the country in order to perform temporary work or a specific project for a definite term;
  6. A part time work permit;
  7. A juvenile work permit allowing for an employer to employ a juvenile between the age of 15 and 18;
  8. A student training and employment permit allowing for an employer to train or employ a student over the age of 15;
  9. GCC national work permit allowing employers to employ nationals of other GCC states;
  10. Golden visa work permit allowing the employment of an employee in the UAE who holds a golden visa;
  11. National trainee work permit; and
  12. Self-employment permit allowing individuals to engage in freelance work (under self residence for foreign nationals).

Additional types of work permits may be introduced in accordance with the provisions of the New Law.

  1. Equality and Non-Discrimination

The New Law introduces the prohibition of discrimination on the basis of: race, ethnicity, sex, religion, national origin, or on the grounds of disability (Article 4 of the New Law).

Women are entitled to identical wages for the same work (Article 4(4) of the New Law).

  1. Employment Contracts

Article 10(1) of the Executive Regulations provides the minimum requirements necessary for the purpose of a valid employment contract.

Article 10(2) of the Executive Regulations specifically permits an employer (with the consent of an employee) to add additional provisions (over those stipulated under Article 10(1) of the Executive Regulations) provided that the same are not in contradiction with the provisions of the New Law and the Executive Regulations.

The Ministry shall prepare (pursuant to Article 10(4) of the Executive Regulations) contract forms for:

  1. Full time employment;
  2. Part time employment;
  3. Flexible work employment;
  4. Remote work employment; and
  5. Job sharing employment.

The Ministry may as required introduce further standard form contracts.  It will be interesting to see if free zones (e.g.: JAFZA, DAFZA, DMCC and DDA) which are subject to the New Law follow suite.  At the date of this client alert not all free zones have introduced new standard form contracts in compliance with the New Law and Executive Regulations.

  1. Salary

All employers registered with the Ministry are required to pay employees under the Wage Protection System (“WPS”) (Article 16(1)(b) Executive Regulations).  All wages are to be paid in AED unless agreed otherwise by the contracting parties.  How this will work in practice given WPS has previously provided for payment only AED remains to be seen.

Article 25 of the New Law sets out permitted deductions from an employee’s salary.  Notably Article 25(1)(b) of the New Law puts a limit on the percentage of salary that can be deducted at 20%, it is unclear if this is a given month or during a year.  Consideration will need to be given to circumstances where housing loans or the like are advanced and then repaid.

Article 26 of the New Law provides that a minimum wage may be set in the future.

  1. Contract Term

One fundamental change under the New Law is the abolition of unlimited term contracts.  The New Law introduces a maximum fixed term of 3 years (Article 8(3) of the New Law), albeit it is our understanding that employers which are Dubai onshore entities will continue to be granted only 2 year work permits and as such fixed term contracts in such instances will be granted on the basis of 2 year renewable terms.

Fixed term contracts may be extended for up to a 3 year period (noting comments above regarding visa terms) or shorter periods one or more times and a renewal does not necessarily have to involve express written notice and consent, instead it can be extended implicitly (Article 8(5) of the New Law).

  1. Probationary Period

As with the Previous Law, probationary periods can run for a period not to exceed 6 months (Article 9(1) of the New Law)).  An employer wishing to terminate during a probationary period must provide at least 14 days’ notice to terminate.  In the event that an employee wishes to terminate (Article 9(1) of the New Law during the probationary period, the employee must: provide at least 30 days’ notice where they wish to take on employment with another employer in the UAE (Article 9(2) of the New Law); or provide at least 14 days’ notice where the employee wishes to leave the UAE (Article 9(3) of the New Law).

  1. Employer Obligations

An employer may not assign work to an employee that is “fundamentally different” to the work agreed in the employment contract (Article 12 of the New Law).

An employer is obliged amongst other things to: keep employee files in accordance with the provisions of Article 13(1) of the New Law; invest in the development of skills of employees (Article 13(5) of the New Law); bear the costs of private healthcare in accordance with corresponding legislation (Article 13(8) of the New Law); and provide its employees (upon the employee’s request) at termination with a confirmatory notice setting out date of joining, date of expiry, total service, last wage, job title and the reason for termination, even if the contents of that letter reduces the ability of the exiting employee to gain employment (Article 13(11) of the New Law).

  1. Employee Obligations

The employee is under various obligations pursuant to Article 16 of the New Law, these include but are not limited to obligations of: confidentiality (Article 16(4) of the New Law); developing functional and professional skills (Article 16(8) of the New Law); and honesty and professionalism in the performance of work (Article 16(2) of the New Law).

  1. Working Hours / Overtime

Subject to exceptions under the Executive Regulations, the maximum working hours for an employee is 8 hours a day or 48 hours per week, with an emphasis on the word “or” (Article 17(10) of the New Law).

Article 15(1) of the Executive Regulations stipulates specific circumstances where time spent by an employee travelling to their workplace will count towards their working hours.  As a general rule such travel time does not apply (Article 17(3) of the New Law).

Overtime payment mechanisms are set out under Article 19 of the New Law.  A maximum of 2 hours overtime a day is permitted (Article 19(1) of the New Law).  Overtime is paid at a 25% uplift of basic salary save where the hours of overtime take place between 10pm and 4am when overtime is paid at a 50% uplift of basic salary (Article 19(3) of the New Law).

If work is required on a rest day the overtime payment is paid at a 50% uplift of basic salary (Article 19(4) of the New Law).

Overtime entitlement does not extend to those categories of employees set out in Article 15(4) of the Executive Regulations. Furthermore such categories of worker are also exempt from the maximum work hours.  Employees who are exempt include directors and board Chairman and persons holding supervisory positions, it remains to be seen how this will work in practice.

  1. End of Service Gratuity

The rules regarding the payment of end of service gratuity under the New Law introduce two key changes: 1) the concept of deductions to gratuity entitlement where an employee terminates their employment (prior to the completion of 5 years’ service) is removed; and 2) the law is now specific in terms of UAE nationals employed in the private sector having no rights to end of service gratuity.  All other gratuity provisions remain as per the Previous Law i.e. gratuity is payable after 1 years’ continuous service, calculated only against base salary, capped at 2 years’ salary and calculated on the basis of 21 days base salary for the first 5 years of service and 30 days base salary for service over 5 years.  Entitlement to gratuity for part years served after the conclusion of the first year of continuous service remain.

It is worth noting that the New Law does (under Article 51(8)) leaves the possibility that end of service may be replaced by an alternative pensions system likely to be similar to the DEWS system operational in the Dubai International Financial Centre.

Article 53 of the New Law provides that all employee entitlements are to be paid within 14 days from the date of contract expiration.

Article 29 of the Executive Regulations places controls on what deductions an employer can make against end of service gratuity.  This does include the repayment of loans (Article 29(1)(a) of the Executive Regulations).

Article 30 of the Executive Regulations regulates how end of service will be paid to employees who are not full time employees.

  1. Labour Claims

Article 55(1) of the New Law provides that where an employee has a claim against their employer and the claim does not exceed AED 100,000, then any court fees which would be normally payable by the employee are waived.

  1. Holiday Entitlement

The New Law provides for a minimum holiday entitlement of 30 days (typically this is reflected in employment contracts as 25 working days) (Article 29(1) of the New Law).  For new employees holiday entitlement accrues at 2 days per month for the first 6 months of service.

Part time workers are entitled to holiday pursuant to the requirements of Article 18 of the Executive Regulations.

Article 19 of the Executive Regulations provides that where an employer has allowed for the carry over of balance of unused holiday entitlement (Article 29(5) of the New Law).  Article 19(1) of the Executive Regulations provides that an employee may carry forward no more than half of their annual leave into the following year.

Article 19(2) of the Executive Regulations provides that where an employee’s service is terminated, a cash allowance for accrued but unused holiday at the date of termination is payable based on basic salary.

  1. Maternity Leave

Article 30 of the New Law provides 60 days of maternity leave, 45 days at full pay and 15 days at half pay.  Additional unpaid leave is available in certain medical circumstances.

For employees returning from their maternity leave, and for a period not exceeding 6 months from the date of delivery shall be entitled to 2 daily rest periods for breastfeeding not to exceed an hour each day of entitlement.

  1. Sick Leave

Following the completion of a probation period, an employee is entitled (under Article 31 of the New Law) to sick leave of no more than 90 consecutive or intermittent days each year based on: a) 15 days full pay; b) 30 days with half pay; and c) the period thereafter unpaid.

An employer may terminate the service of an employee after sick leave has been exhausted (Article 31(5) of the New Law).

Article 20(1) of the Executive Regulations recognises that no sick leave will be paid where illness relates to abuse of drugs or alcohol or a violation of an employer’s safety instructions.

  1. Various Leaves

The New Law (Article 32 and Article 21 of the Executive Regulations) introduces a number of additional leave entitlements including parental leave, study leave, mourning leave, sabbatical leave for UAE nationals performing national or reserve service.  Unpaid leave entitlement is covered under Article 33 of the New Law.

  1. Wrongful Termination

The arbitrary dismissal provisions under the Previous Law have been abolished and replaced by Article 47 of the New Law, which provides that an employee’s termination is unlawful if the termination relates to: a) filing a serious complaint with the Ministry; or b) filing a case against the employer which has proven to be correct.

Any successful wrongful termination claim compensation is capped at 3 months of salary- subject to the court’s discretion.

  1. Non-Competes

Article 10 of the New Law allows non-compete provisions to be applied to protect legitimate business interests.  Such non-competes are not to exceed 2 years.

Article 12 of the Executive Regulations provides that in order for a non-competition clause to apply then the following must be specified: a) geographical scope; b) term not to exceed 2 years; and c) nature of work that is being prohibited.

Any non-compete provision will have no standing where the employer has terminated the employee’s employment.  Article 12(2) provides that the enforcement of any non-compete requires the employer to demonstrate damage arising from the breach.

Article 12(c) of the Executive Regulations provides that certain categories of employee may not be subject to non competes.

  1. Suspension

An employer may suspend an employee for a period of 30 days for the purposes of conducting a disciplinary investigation (Article 40(1) of the New Law).  During that suspension period an employer is entitled to suspend half of the suspended employee’s salary.  Insofar as the employee is not terminated following their suspension, the employee’s suspended salary shall be repaid.

Further suspension rights exist where an employee has been accused of assault or criminal behaviour involving fraud or dishonesty.

  1. Disciplinary Rules

Article 39 of the New Law together with Article 24 of the Executive Regulations regulate disciplinary rules and sanctions, which broadly speaking run from written notices, wage deductions and suspensions.

  1. Termination of Employment

Article 42 of the New Law provides that a contract of employment can be terminated as follows: a) mutual agreement; b) expiry of a contract term unless renewed; c) death of the employee or permanent incapacity; d) final judgment involving a prison sentence of greater than 3 months; e) closure of the employer; f) insolvency of the employer; or g) failure of the employee to renew their work permit.

Under Article 43 of the New Law, either party is entitled to terminate the contract of employment for any legitimate reason, provided that notice is given.  Minimum notice is 30 days and maximum notice is 90 days.

Article 44 of the New Law is in effect the new Article 120 from the Previous Law.  Article 44 sets out circumstances in which termination without notice can occur.

Article 46 of the New Law provides that an employee’s service cannot be terminated by an employer before exhausting all sick leave.

  1. Compliance

Employers are required to ensure that unlimited term employment contracts are converted to fixed term arrangements in accordance with the New Law and Executive Regulations within 1 year of the adoption of the New Law, i.e., 2 February 2023.

The provisions of the New Law and Executive Regulations apply to all unlimited term contracts governed pursuant to the Previous Law.

© 2022 Bracewell LLP
For more articles on UAE legal updates, visit the NLR United Arab Emirates section.

Europol: More Than Half of Counterfeits Originate in China

On March 7, 2022, the European Union Agency for Law Enforcement Cooperation (Europol) and the European Union Intellectual Property Office (EUIPO) jointly released the Intellectual Property Crime Threat Assessment 2022. Per the Assessment, China (including Hong Kong) was the main source of counterfeits based on number of counterfeits and by value of the counterfeits seized at the EU external borders.  Almost 76% of the fake goods detained were for trademark infringement; design infringement was the second most reported at 23% while copyright was third with 15%.

China and Turkey remain the main countries of origins for counterfeit clothing, shoes, bags, watches, and jewelry seized at the EU’s border. These goods are mostly ordered online and discovered as part of postal shipments or on passengers entering the EU.

Similarly, China is the country of origin for most of the seized counterfeit electrical/electronic and computer equipment, mobile phones and accessories. With respect to mobile phones, the Assessment states,

…the visual appearance of the counterfeit devices is very convincing, closely mimicking the external characteristics of the original phones. However, typically some features and software characteristics are missing and the International Mobile Equipment Identity (IMEI) is often fake.  The use of cheap and substandard electric components, which can be found in fake batteries, headphones or chargers, pose safety risks.

“China and Turkey were among the most frequently reported non-EU countries of origin for counterfeit food and drink seized at the EU’s external border.” Similarly, counterfeit perfumes and cosmetic products often originate from China and Turkey.

In addition to ready-to-use IPR-infringing goods, product components, such as aroma compounds, fixatives and solvents, are increasingly being seized. These components are used to create the final counterfeit products in the EU.

More worrisome, China and Turkey were the main origin of counterfeit pharmaceutical products.

Toys round out the top 10 counterfeits with China also being main point of origin.

The full Assessment is available here: IP_Crime_Threat_Assessment_2022_FullR_en.

Article By Aaron Wininger of Schwegman, Lundberg & Woessner, P.A.

For more intellectual property legal news, click here to visit the National Law Review.

© 2022 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

Law Firms Respond to Russia’s Invasion of Ukraine: How the Legal Industry & the Public Can Help

On February 21, 2022, Russian President Vladimir Putin ordered ground troops into the eastern Ukrainian provinces of Donetsk and Luhansk. Invading under the guise of establishing independence for the region on February 24, Russia started bombing key points of interest around the country, including the capital city of Kyiv. At the time of writing, the skirmishes remain ongoing, with Russia expanding its invasion force as the days go on.

The ramifications of Russia’s war are widespread. In Ukraine, infrastructural damage is considerable, an estimated 2 million civilians are evacuating or have been driven from their homes. The death toll remains uncertain at this time, but the Ukrainian health ministry estimates that hundreds of citizens have been killed as a result of the violence. Globally, financial markets are in a state of rapid flux, seeing huge rises in inflation, a strained supply chain and plummeting stock prices.

Law firms in the United States and abroad have responded to the conflict by offering pro bono services in anticipation of resultant legal complications and organized means by which money can be donated to Ukrainian humanitarian efforts.

How Have Law Firms Responded to Russia’s Invasion of Ukraine?

In some instances, firms have also closed offices in Ukraine to protect workers, and severed ties with Russian businesses. Law firms that have closed offices in Ukraine include Dentons, CMS and Baker McKenzie, which have closed offices in Kyiv.

“Dentons has established a taskforce to monitor and manage the crisis situation, with a primary focus on protecting our people,”  Tomasz Dąbrowski, CEO of Dentons Europe, told the National Law Review. “We are in regular contact with our team in Kyiv and are providing our colleagues and their families with any possible assistance, including transport, relocation and accommodation assistance in the neighboring countries. Furthermore, we have seen a wave of kindness and generosity from our people across Europe, who have volunteered to provide accommodation in their homes for Ukrainian colleagues.  Furthermore, in addition to the financial support our Firm is providing to our Ukrainian colleagues, we have also received financial donations from around the world to help them resettle.”

Many law firms have announced they are closing offices in Russia, including Squire Patton Boggs, Latham & Watkins Freshfields Bruckhaus Deringer, Akin Gump Strauss Hauer & Feld and Morgan Lewis & Bockius, among others. Norton Rose Fulbright announced March 7 that they are winding down their operations in Russia and will be closing their Moscow office as soon as they can, calling Russia’s invasion of Ukraine “increasingly brutal.”

“The wellbeing of our staff in the region is a priority. We thank our 50 colleagues in Moscow for their loyal service and will support them through this transition.”

Norton Rose Fulbright said they “stand unequivocally with the people of Ukraine,” and are taking steps to respond to the invasion.

“Some immediate actions are possible and we are taking them. We are not accepting any further instructions from businesses, entities or individuals connected with the current Russian regime, irrespective of whether they are sanctioned or not. In addition, we continue to review exiting from existing work for them where our professional obligations as lawyers allow. Where we cannot exit from current matters, we will donate the profits from that work to appropriate humanitarian and charitable causes,” the statement read. “We are working with our charitable partners in every region to raise funds to help the people of Ukraine, as well as providing pro bono support to those Ukrainians and others who are being forced to relocate.”

Law firms have also stepped forward to offer pro bono assistance to those affected by the Russian invasion of Ukraine.

Law Firms Offering Pro Bono Assistance to Ukraine

Akin Gump Partner and Pro Bono Practice leader Steven Schulman explained how the legal industry is collaborating and working to provide assistance:

“So what we often do in these crises, we will self organize, [and] say who’s a point person who knows what’s going on, and then we will share information so that again, we’re lightening the load on the legal aid organizations.”

Another law firm offering assistance to Ukraine is  Covington & Burling, which the country hired to help pursue its claim against  Russia at the International Court of Justice (ICJ). Specifically, Ukraine asked the court to order Russia to halt its invasion. Covington filed a claim on behalf of Ukraine to the ICJ.

Nongovernmental organizations (NGOs) are providing emergency aid in Ukraine, as well as in neighboring countries, such as Poland, Hungary, Slovakia and Romania to help people displaced by the war as they come across the border, Mr.Dąbrowski said. These organizations are providing food, water, hygiene supplies and other necessities, and urgent psychological counseling. Specific NGOs on the ground in Ukraine include Mercy Corps, Fight for Right, Project HOPE, Hungarian Helsinki Committee, and  Fundacja Ocalenie, among others.

However, NGOs need cash donations in order to keep providing aid. Mr.Dąbrowski detailed what pro bono work Dentons is doing, and how the firm is supporting NGOs:

“Our Positive Impact team is in touch with numerous NGOs and lawyers from our firm to identify opportunities for pro bono legal advice, mainly in the countries which share a border with Ukraine.  We are already working with NGOs in Poland and Hungary which are helping Ukrainian refugees displaced by the war. We are assisting with issues related to employment law, contracts, establishment of charitable foundations, etc… We are also in discussions with an international relief agency which is looking to set up operations within Ukraine.

While men between the ages of 18 and 60 are currently prohibited from leaving Ukraine, as of March 10, 2022, the conflict has created one of the largest refugee crises within the last few decades.

“We have activated our registered charitable foundation to collect donations from our people around the world to support Ukrainian families – and particularly children –  displaced by the war, including some of our own people from Kyiv.  So far, our colleagues from around the world have donated or pledged close to €300,000,” Mr.Dąbrowski said. “We have already distributed €60,000 of that to eight NGOs in Poland, Hungary and Romania, which are providing emergency aid, food and water, hygiene supplies, transportation, medical and psychological care, shelter and schooling to Ukrainian civilians fleeing from the war”

Concerns with immigration and refugee asylum is the next expected complication. In the short-term, the Department of Homeland Security is prioritizing Temporary Protected Status (TPS) designations for those already in the U.S.

For the public, there are a number of actions to take to support Ukrainians. However, those wishing to help should make sure to do their research before making any donations in order to ensure the funds end up in the right hands.

How Can Members of the Public Help Ukraine?

Possible scam organizations and outreach programs are common during international crises, so it’s important to know the signs of fraudulent charities. Some best practices for providing support include:

  • Giving directly to an organization rather than through shared donation links on social media

  • Being wary of crowdfunding efforts

  • Doing a background check on an organization and its donation claims using Charity Watch, Give.org, and Charity Navigator.

Some examples of charitable organizations focused on Ukraine relief include:

Informational resources for those affected are provided below:

Conclusion

Law firms and the public alike have stepped up to offer assistance and financial help to those most affected by the Russian invasion. Law firms cutting ties with Russian businesses and closing offices in Russia shows that the legal industry is standing behind Ukraine as the conflict continues to escalate.

In upcoming coverage, the National Law Review will be writing about how law firms are helping clients handle Russian sanctions, as well as the immigration implications of refugees displaced by the war in Ukraine.

*The quotes and input of interviewees reflect the latest information on the Russian invasion of Ukraine as of March 7, 2022. Readers can find the latest legal news from around the world on The National Law Review’s Global Law page.*

Article By Chandler Ford, Jessica Scheck, and Rachel Popa of the The National Law Review / The National Law Forum LLC

Copyright ©2022 National Law Forum, LLC

Ed Sheeran in “Shape of You” Court Battle

Singer Ed Sheeran is currently giving evidence in a three week High Court copyright trial over his 2017 chart-topping hit “Shape of You.”

Sheeran has been accused by two musicians, Sami Chokri and Ross O’Donoghue, that his hit song, “Shape of You” plagiarises “particular lines and phrases” of their 2015 composition, “Oh Why.” The two songs in question share a similar melody.

The dispute began back in May 2018 and saw Sheeran and his co-writers prevented from obtaining an estimated £20 million in royalties from performances or broadcasts of “Shape of You” after Chokri and O’Donaghue accused Sheeran and his co-writers of “appropriating” their music. Chokri claims that he sent the track to Sheeran in a bid to work with the star, but later heard the chorus on “Shape Of You” – which became the biggest selling single of 2017 in the UK.

Sheeran’s lawyers told the High Court at that time, that the musician and his co-writers had no recollection of having heard the song in question before the dispute began and asked the High Court to declare that he and his co-writers had not infringed Chokri and O’Donoghue’s copyright, with Sheeran also stating his reputation had been tarnished by the allegations.

In July 2018, Chokri and O’Donoghue issued a counterclaim for “copyright infringement, damages and an account of profits in relation to the alleged infringement”.

In a November 2020 ruling, the parties involved “anticipated that they would incur costs in the region of £3 million between them on the dispute”.

Andrew Sutcliffe QC, for Chokri and O’Donoghue, said the question at the heart of the case was “how does Ed Sheeran write his music?” and whether he “makes things up as he goes along during songwriting sessions or whether his songwriting process involves the collection and development of ideas over time which reference and interpolate other artists.”

Whilst the trial plays out in the High Court over the course of the next three weeks, it serves as a timely reminder that content created should be original and independent to avoid falling within the remit of copyright infringement. Otherwise, the risk of copyright infringement can be reduced by:

  • Obtaining relevant authorisations and approvals from a Collective Management Organisation, such as; PPL PRS (the UK’s music licensing company) or the Copyright Licensing Agency (for printed material);
  • Obtaining relevant permissions from a copyright owner/the copyright owner’s agent which may require the payment of licencing fees;
  • Entering into an assignment of intellectual property where copyright work has been produced as part of an underlying contractual agreement; and
  • Checking any relevant copyright/licencing terms to ascertain whether there is permission to reproduce certain content.

Article By Keisha Phippen of K&L Gates

For more intellectual property legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates