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The challenges of complying with conflicting regulations: reality versus practicality

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The challenges of complying with conflicting regulations: reality versus practicality

By Stuart McClymont, co-founder and MD, base60 Consulting

We are all familiar with silo-orientated organisations having a right hand that never quite knows what the left hand is up to.While large organisations are addressing this challenge internally in a continuing efficiency drive, the problem is in a different league altogether when poor communication between regulatory bodies results in conflicting requirements. This can lead to an organisation in an effort to comply with one regulatory requirement fall foul of another.This conflict is a significant problem to market participants on both a national and international scale.

Regulators need to talk

Stuart McClymont

Stuart McClymont

The issue is that regulatory bodies act independently of each other, and the market, they have different objectives and often make different interpretations of international guidelines. Regulators are understandably keen on market transparency, protection and confidentiality, but it doesn’t take much imagination to realise that transparency and confidentiality are often mutually exclusive.

MiFID and GDPR conflict

The MiFID II transparency requirements around transaction reporting require personal information about the actual individual person executing a transaction,and this collides with the General Data Protection Regulation (GDPR) around individuals’ personal information.Fraud and identity theft is increasing at a time that transaction reporting requires a large amount of personal information required to be captured across multiple industry infrastructures,and this surely increases the risk of personal data not being protected.It would have made sense for the regulators to have asked market participants how they keep individuals’ personal data confidential, and, in parallel ellicit suggestions from market participants as to how they could increase the transparency of individuals’ transactions.Armed with this knowledge the regulators could have improved the legislative and regulatory requirements around transparency and confidentiality with all players on board form the get go.

How it started

Back in 2004/05 it was apparent that the FED in the US was uncomfortable with the level of outstanding unsigned confirmations for Credit Derivative Swap (CDS) across the global CDS market. The major market participants, who accounted for most of the transaction volume, worked together to address the issue. Known as the G14 Dealers, they agreed among themselves a set of self-regulated targets to reduce this back-log, and to track and report progress against these targets to the FED on a regular basis. These became known as the ‘FED Targets’.Through working collaboratively together, the G14 market participants not only reduced the backlog and average time confirmations remained unsigned, but also developed an industry standard electronic confirmation messaging language, the Financial products Markup Language (FpML).Participants of trades then used technology to electronically match confirmations and eliminate the manual, lengthy and time-consuming process around paper confirmation. This electronic matching not only eliminated the back log of paper confirmations but was also scalable to support increased trading volumes across the global markets. This is a great example of market participants, who understand their products and processes, introducing changes to increase control in a self-regulated environment and providing ongoing transparency to the regulatory community.

Independent interpretation of 2009 commitments

In 2009, the G20 summit in Pittsburgh agreed four commitments around Global over-the-counter (OTC) Derivatives:

  • Reporting OTC Derivatives to Trade Repositories
  • Increased use of central counterparties for OTC Derivatives
  • Execution of OTC Derivatives on electronic trading platforms
  • Increased use of collateral and risk mitigation techniques.

Each G20 country then independently interpreted the global Pittsburgh OTC Derivatives commitments and developed them into local legislation. Not only did each country interpret the four high level commitments differently but they also implemented different regulatory requirements – Dodd-Frank (US), ESMA (Europe) and JFSA (Japan) – and had different compliance timeframes.  Depending on the location of their primary regulatory supervisor, market participants were then faced with the challenge of having to comply with the different requirements when products were being traded between market participants across national borders.

It is understandable that each country wanted to assume control of implementing the changes given that most countries had to bail out organisations domiciled in their countries using taxpayers’ money.But it is in times of stress that we need global collaboration and harmonisation across regulators and not local protectionism by local regulators.

Market impact

Fast forward to 2014/15 and many market participants had to implement bespoke tactical solutions to comply with the differing regulatory requirements across the globe.Moreover,it is doubtful that any regulator has a full and accurate transparency over the global OTC Derivative market place.

The solution – a collaborative approach

A small group of the G14 Dealers (albeit a few names have disappeared due to the bankruptcies in 2008) again started to work together to understand how to simplify and automate this complex, costly and fragmented infrastructure. They identified opportunities to optimise collective investment in technology and resources to increase control, capacity and client service, while delivering against regulatory requirements, through collaboration, innovation and market participation.

There is little doubt that a collaborative approach, bringing together market practitioners is logical for matters of regulation and market safety. The FCA is sensibly using the sandbox approach to provide an environment where participants can collectively design, develop and test solutions to meet regulatory objectives. The Monetary Authority of Singapore (MAS) adopts a similar approach.

Ongoing regulatory consultation with market participants is also imperative ahead of introducing regulatory rules and requirements even sometimes at a very basic level. A simple and recent example where this hasn’t happened is with the implementation date of MiFID II. Given the significant ‘go-live’ challenges that MiFID II imposes on all market participants it would have made sense for the implementation date to be on a Monday (so that the preceding weekend could be used to migrate, test and deploy) or in the quiet market period between Christmas and New Year 2017 to minimise and mitigate the risks of go-live for all market participants. However, the regulators decided to choose Wednesday 3rd January 2018 for its implementation which is firstly in the middle of a week and secondly the day after the first full global trading day of 2018.

What regulators should do

On the basis that regulators have access to everything, and don’t like surprises, there are three broad processes that would assist regulators when formulating regulations:

  1. Consult with market participants who have a deep understanding of the market and its processes and have the expertise to suggest workable solutions to meet multiple regulatory objectives in a sustainable and efficient manner.
  2. Harmonise interpretations and regulations through cross border regulatory conversations and by working with the global international governance bodies.
  3. If they’re looking at a market that is subject to other regulations (e.g. GDPR), sit down and consult with the other regulator(s) (e.g. MiFID II) to ensure that there are no conflicting requirements. Regulatory bodies have differing objectives and lens of focus. This is understood, but all large organisations have different objectives across different departments and they work together to ensure that they are all achieved by talking and communicating.

People affect change communicating and collaborating and this leads to the right changes being made for all.

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EU Commission sets out new intellectual property action plan affecting SEPs, patent pooling and EU design protection

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EU Commission sets out new intellectual property action plan affecting SEPs, patent pooling and EU design protection 1

By Andrew White, Partner and UK & European patent attorney at intellectual property firm, Mathys & Squire

The EU Commission published a new intellectual property action plan.  The action plan, touted as “an intellectual property action plan to support the EU’s recovery and resilience” outlines possible future moves, noting that intangible assets are “the cornerstone of today’s economy”, with IPR-intensive industries generating 29.2% (63 million) of all jobs in the EU during the period 2014-2016, and contributing 45% of the total economic activity (GDP) in the EU worth €6 trillion.

The action plan also notes that the quality of patents granted in Europe is among the highest in the world, and that European innovators are frontrunners in green technologies, and leaders in specific digital technologies, such as connectivity technologies.  That being said, the action plan notes that while smart intellectual property (IP) strategies can act as a catalyst for growth, European innovators and creators often fail to grasp the benefits of IP.

The action plan indicates that the Commission is willing to take stronger measures to protect European IP, to increase IP protection amongst European SMEs and to help European companies capitalise on their inventions and creations.

Ambitiously, the action plan also notes that the EU aspires “to be a norm-setter, not a norm-taker” and is keen to seek ambitious IP chapters with high standards of protection in the context of Free Trade Agreements, to help promote a global level playing field.

Some of the key takeaways are noted below.

Unified Patent (UP)

The implementation of the Unified Patent is seen as a priority in the action plan, indicating that it will reduce fragmentation and complexity, and will reduce costs for participants, as well as bridging “the gap between the cost of patent protection in Europe when compared with the US, Japan and other countries”. The action plan also indicates that it will “foster investment in R&D and facilitate the transfer of knowledge across the Single Market”.

SEP licensing

With the introduction of 5G and beyond, the number of standard essential patents (SEPs), as well as the number of SEP holders and implementers, is increasing (for instance, there are over 95,000 unique patents and patent applications supporting 5G).  The action plan notes that many of the new players are not familiar with SEP licensing, but will need to enter into SEP arrangements, and that this is particularly challenging for smaller businesses.

One area that has garnered a lot of press attention recently relating to the licensing of SEPs, and in particular to businesses that are perhaps not as familiar with SEP licensing, is that of the automotive sector.  The action plan acknowledges this and notes that “although currently the biggest disputes seem to occur in the automotive sector, they may extend further as SEP licensing is relevant also in the health, energy, smart manufacturing, digital and electronics ecosystems.”

To this end, the Commission is considering reforms to further “clarify and improve” the framework governing the declaration, licensing and enforcement of SEPs.  This includes potentially creating an independent system of third-party essentiality checks, and follows off the back of a pilot study for essentiality assessments of Standards Essential Patents and a landscape study of potentially essential patents disclosed to ETSI also published alongside the action plan.

Modernising EU design protection

The Commission has indicated that it wants to “modernise” EU design protection “to better reflect the important role design-intensive industries play in the EU economy”.  At present, the Commission is asking for stakeholder feedback on the options for future reform. Recent results of an EU evaluation show that the current legislation works well overall and is still broadly fit for purpose. However, the evaluation has also revealed a number of shortcomings, including the fact that design protection is not yet fully “adapted to the digital age” and lacks clarity and robustness in terms of eligible subject matter, scope of rights conferred and their limitations. The Commission also considers that it further involves partly outdated or overly complicated procedures, inappropriate fee levels and fee structure, lack of coherence of the procedural rules at Union and national level, and an incomplete single market for spare parts.

Updating the SPC system

While the Commission notes that, following an evaluation, the Supplementary Protection Certificate (SPC) framework finds that the EU SPC Regulations “appear to effectively support research on new active ingredient, and thus remain largely fit for purpose”, it believes the EU SPC regime could be strengthened to reduce red tape, improve legal certainty and reduce costs for business.  One option being touted is to introduce a centralised (‘unified’) grant procedure, under which a single application would be subjected to a single examination that, if positive, would result in the granting of national SPCs for each of the Member States designated in the application. The creation of a unitary SPC, complementing the future unitary patent, is listed as another option.

Patent pooling in times of crisis

The EU Commission notes how the pandemic has highlighted the importance of effective IP rules and tools to boost innovation and secure fast deployment of critical innovations and technologies, both in Europe and across the globe, but that it sees a need to improve the tools in place to cope with crisis situations. To this end, the action plan includes proposals to introduce possible mechanisms for rapid voluntary IP pooling and better coordination if compulsory licensing is to be used.

Increasing access for SMEs to IP protection and the introduction of an “IP voucher”

Andrew White

Andrew White

The action plan notes that only 9% of EU SMEs have registered IP rights.  It aims to help SMEs better manage their IP and improve their competitiveness by giving EU SMEs easier access to information and advice on IP. Through the EU’s public funding programmes and further rolled-out at a national level, EU SMEs will get financial aid to finance so-called IP scans (comprehensive, initial, strategic and professional advice on the added value of IP for the individual SME’s business), as well as certain costs related to IP filings.

This will happen through the implementation of an “IP voucher”, which is made available in co-operation with the EUIPO, providing co-funding of up to €1,500 for:

  • IP Scans: up to 75% of the cost and/or
  • registration of trade marks and design rights in the EU and its Member States: up to 50% of the application fees.

SMEs will be able to apply as of mid-January for the IP voucher, through a dedicated website. We understand that the voucher will be provided on a “first come first served” basis.

The action plan also indicates the EU Commission’s intention to make it easier for SMEs to leverage their IP when trying to get access to finance, and that this may be done for example through the use of IP valuations.

EU toolbox against counterfeiting

The EU commission notes that counterfeiting is still a major problem for European businesses and proposes that an “EU toolbox” is set up to set out a co-ordinated European approach on counterfeiting.  The goal of this EU toolbox should be to specify principles for how rights holders, intermediaries and law enforcement authorities should act, co-operate and share data.

AI and blockchain technologies

The action plan notes that in the current digital revolution, there needs to be a reflection on how and what is to be protected – perhaps a nod to the recent litigation we have seen regarding whether an AI can be considered as an inventor.  The action plan in particular notes that questions need to be answered as to whether, and what protection should be given to, products created with the help of AI technologies.  A distinction is made between inventions and creations generated with the help of AI and the ones solely created by AI.  The action plan notes that the EU Commission’s view is that AI systems should not be treated as authors or inventors, which is the approach taken by the EPO, but that harmonisation gaps and room for improvement remain and the EU Commission has indicated that it intends to engage in stakeholder discussions in this respect.

Conclusion

There is much to take in from the action plan, and we will closely monitor developments in all of the above areas to see what will be implemented and when.

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Tech talent visa sees 48% increase in applications over one year as global founders look to the UK

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Tech talent visa sees 48% increase in applications over one year as global founders look to the UK 2
  • Demand for Global Talent Visa applications has increased over two consecutive years since 2018 – up 45% and 48% respectively
  • Demand is expected to increase from 2021as, from January, the Tech Nation Visa will be opening up applications to exceptional tech talent from the EU hoping to work in the UK
  • 52% of those endorsed for the Tech Nation Global Talent Visa are employees, while 28% of those endorsed are tech founders
  • App & software development, AI & machine learning,and fintech are the most common sectors for visa holders. Most endorsed applications come from India, the US and Nigeria
  • 41% of Global Talent Visa applicantschose to reside outside of London to work in the UK’s strong regional tech hubs

Today, Tech Nation, the growth platform for tech companies and leaders, launches a new report, which reveals changes in the international talent landscape and growing interest in the Global Talent Visa.

The Tech Nation Global Talent Visa

As the race for global tech talent heats up, many countries have been making their pitch to attract the best and brightest tech talent to grow their tech industries and create jobs. The Global Talent Visa, for which Tech Nation is the official endorsing body for Digital Technology, plays a key role in enabling international tech talent to contribute to the UK economy and to the growth of high priority sectors such as AI and Cyber.

The visa has seen applications increase significantly over the past two years, with 45% and 48% increases respectively. Since November 2018, the Tech Nation Global Talent Visa has received 1,975 applications and endorsed 920 visas from over 50 countries worldwide. Demand is expected to increase in 2021 with the EU coming into the route.

52% of those endorsed for the Tech Nation Global Talent Visa since 2014 are employees at some of the UK’s leading tech firms, helping to fill existing talent gaps, while 28% are tech founders bringing ideas, talent and capital into the UK’s fast growing tech sector. In 2020, the visa enabled 421 founders to set up business in the UK, up from 400 in 2019.

This global talent is distributed right across the UK. 41% of endorsed applicants for the visa are based outside of London, working in the UK’s strong regional tech hubs. App & software development, AI & machine learning, and fintech are the most popular sector destinations for visa holders, reflecting growth in those tech sub-sectors. India, the US, and Nigeria are the top three countries from which exceptional talent has come into the UK with the Tech Nation visa.

A surge in demand and interest

Labour markets around the world and in the UK have undergone profound shifts in 2020. The data released today shows that there has been a 200% increase in the volume of users in the UK searching online for terms explicitly related to ‘UK tech visas’ between April and September 20201. This surge in interest to work in the UK’s digital tech sector is reflected globally too, with a 100% increase in users internationally searching for these terms in countries like the US and India.

Digital tech roles remain in high demand in the UK. Cyber skills are becoming increasingly important within the UK, particularly in regions such as Wales and the East and West Midlands where there has been a huge increase in demand between 2017 and 2019 (351%, 140%, and 86% respectively). Demand for AI skills has increased by 111% from 2017 to 2019, with Northern Ireland and Wales seeing the greatest increases in demand – 418% and 200% respectively.

Minister for Digital and Culture Caroline Dinenage said: “It’s no surprise the UK’s world-beating technology sector appeals to international talent. Our dynamic companies reflect the UK’s long-standing reputation for innovation and are renowned on the global stage. We are open to the brightest and the best talent, and this visa scheme makes it easier for companies across the country to recruit the talent they need to grow.”

Stephen Kelly, Chair of Tech Nation, comments“The UK is a global talent magnet for Tech founders. The UK provides rich opportunities for entrepreneurs to set up,  flourish and scale a business. The Global Talent Visa is crucial to making this process easy and accessible. Tech Nation’s Visa Report shows that, despite the pandemic, international interest to work in the UK tech sector has never been higher. Attracting tomorrow’s tech leaders to the UK is crucial to the continued growth of the sector, the UK’s place in the world, and driving the nation through recovery to growth in the digital age.”

Trecilla Lobo, SVP, People at BenevolentAI and Tech Nation Board Director, said: “The UK tech ecosystem continues to contribute to the creation of jobs and to innovative products and services. The Tech Nation Visa enables the UK tech sector to maintain its competitive advantage by attracting the best talent in specialist skills in tech, research and AI and a more globally diverse perspective to help us innovate and create amazing products and services. As an immigrant to the UK in my late teens, the UK visa scheme has enabled me to bring my experience, expertise and contribute to the people agenda for tech scale-ups in the UK, and helped me build a successful career in tech. I am really excited that the Tech Nation Visa will open opportunities and streamline the visa process for future global tech talent.”

Hao Zheng, Co-founder & CEO at RoboK, based in Cambridge and Newcastle, said: “I decided to work in UK tech because of the well-established ecosystem, world-class research and innovation and the high-level of experience that is extremely valuable for startup technology companies.”

Congcong Wang, Head of Operations at TusPark, based in Cambridge, said: The UK is a world leading innovation hub, particularly in the fields of AI and Healthcare. Its environment fosters young talent, breeds disruptive innovation and creates amazing companies. Also, the culture of the UK is nurturing and tolerant for innovation, as it is considered a “safe place” for those inspired to take on the more risky route of entrepreneurship.”

Sumit Janmejai, Data-Driven Cybersecurity Professional at Capgemini, based in London said: “Having studied in the UK and worked with UK professionals, I could appreciate the fact that the UK is fast becoming the center of innovation, research and development in the Tech Industry. Besides that, the country offers an excellent life, welcoming culture, and a safe environment. It was an easy choice.”

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Are bots eating your Facebook budget?

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Are bots eating your Facebook budget? 3

By Mike Townend, founding CMO of Beaconsoft Ltd

In an increasingly digitised world, social media has arguably become the most powerful and influential tool at the disposal of businesses, both large and small.

With more than 3.6 billion active social media users worldwide today, it is no surprise that many companies view it as an unparalleled means of marketing their products and services to new and otherwise unreachable audiences, as well as an opportunity to better understand consumer demand and habits.

Facebook is often regarded as one of the very best social media platforms for marketers – not least because of its targeted digital advertising service – but many firms using it may not realise just how much of their budget could be being wasted due to ad fraud.

Numerous studies suggest digital ad fraud affects between 10% and 60% of all types of digital advertising, with businesses of every size falling prey to so-called ‘bots’ – automated programs used by scammers to undercut deals, divert visitors or steal clicks.

But how do bots work, how might they be affecting businesses’ Facebook budgets, data and analytics, and what can be done to combat them?

How do bots work?

A report published by security firm Imperva found that bots – both good and bad – are responsible for 52% of all web traffic, while a separate study by White Ops concluded that as much as 20% of websites that serve ads are visited exclusively by fraudulent click bots.

In simple terms, a click bot is specially designed to carry out click fraud – in other words, the bot poses as a legitimate visitor to a webpage and automatically clicks on pay-per-click [PPC] ads, buttons or other types of hyperlinks.

Their purpose is to trick a platform or service – in this case, Facebook – into believing that real users are interacting with the webpage, app or ad in question.

Usually, bots will not just click a link once; they will click it over and over again to give the impression that the webpage is receiving a high level of traffic.

Why is this a problem?

The presence of click bots on Facebook is particularly problematic because they can effectively drain a business’ online marketing budget without many of its targeted ads reaching real users who might have a genuine interest.

There are a number of reasons why click fraud could be used – for example, competitors may employ a ‘click farm’ – a group of low-paid workers or bots hired to click on paid advertising links – or organised criminals may have found a way to profit from clicking on a business’ links.

In other cases, apps and software are created to collect the payout for a company’s ads, often with the help of bots.

Mike Townend

Mike Townend

Considering the average cost per click in the UK is £0.78, according to Hubspot, with some ad campaigns for popular key phrases running at £10 per click, or even more, it is clear to see how easily this could mount up if a firm’s budget were to be hijacked by scammers.

How might bots affect data and analytics?

Negative click bots have the potential to produce skewed analytics from Facebook advertising campaigns.

Because many businesses are unable to distinguish between fake clicks and legitimate ones, the data that they collect can lead to false conclusions and decisions that could have a detrimental impact on the business. For example, firms may choose to overspend or under-invest on a campaign based on findings that are substantially erroneous.

Businesses must be confident that they are making sound decisions that are informed by reliable data and analytics – and fortunately, there is a way that they can do this.

Taking the fight to the bots

There are a number of methods that firms can use to identify bot clicks, some more straightforward than others.

Frequently checking Facebook analytics for irregularities in traffic that could be attributable to bots can make this task considerably easier.

Specific things to monitor include the average number of page views, the average session time, and the source of referrer traffic – if there are any glaring anomalies in the data, bots could be the source.

Big spikes in page views caused by a higher number of visits than usual can also be indicative of bot activity and are especially dangerous given their propensity to slow down the page for genuine visitors.

Once malicious traffic has been identified, steps can then be taken in blocking it at source, although this is not a simple process and requires technical knowledge and know-how.

After removing negative click bots, companies can take comfort in knowing they are optimising their campaigns by gaining accurate insights that help to increase efficiency, lower the cost per visit, and improve return on investment.

Conclusion

Defeating the bots that are impairing a business’ performance on Facebook is by no means easy, and it requires time and effort to keep malicious traffic under constant surveillance.

Having experts on your side who are well versed in identifying and removing instances of click fraud can help to turn the tide in the battle against bots and ultimately allow a company to make big savings on its advertising spend.

Firms not only owe it to themselves, but to their customers also, to knock these harmful and disruptive programs offline for good.

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