Data, Intellectual Property & Technology Disputes: key trends from 2024 and predictions for 2025
Insight
2025 trends and insights
AI and IP: Getty Images v Stability AI
In terms of Artificial Intelligence, the blockbuster case in 2025 will be Getty Images -v- Stability AI, with the trial due to be heard in the summer. The court will address how a basket of IP rights (including copyright, database rights, and brands) impacts generative AI. There are also important questions of UK jurisdiction over IP infringements where crucially the degree of exceptions in the UK to infringements is more limited than those in other territories (eg in the USA and in the EU).
Patentability of AI systems
The Supreme Court has also recently said it will hear an appeal in the Emotional Perception case, where the Court of Appeal decided that an Artificial Neural Network should be treated as a computer program, meaning that it was excluded from patentability. This is an important decision concerning whether AI systems can be protected by patents. This may at least come on for hearing in 2025. In terms of the new Labour Government’s approach to AI, shortly before Christmas a consultation was issued on AI and Copyright suggesting changes to copyright and other laws to find a balance between encouraging the development and use of AI in the UK whilst simultaneously protecting the UK’s creative industries.
Biometric data and regulation: the Clearview appeal
Also of interest will be the Information Commissioner’s appeal in Clearview. This case is about the processing of vast amounts of biometric data (facial images) by Clearview. An English court said this was not unlawful because the data was only supplied to foreign law enforcement agencies meaning it fell outside the remit of UK data protection laws. If this is right, in order to ring-fence their activities from UK regulation, we could see large data processors setting up subsidiaries to on-supply data to governments. The ICO is seeking permission to appeal. If granted, the case could be heard before the end of 2025.
Directors’ liability: the impact of Lifestyle Equities
In other aspects of IP, we anticipate further cases exploring the boundaries of where personal liability lies for Directors in IP infringements as the Supreme Court decision in Lifestyle Equities comes to be applied in the lower courts. We also expect that the decisions at the end of 2024 in Sky -v- SkyKick and Thom Browne -v- Adidas will lead to more litigation challenging the extent of registered trade mark protection for iconic brands. Conversely, brand owners are likely to be less gung-ho for fear that litigation will lead to counterclaims from defendants attacking the width of their brand portfolios. The Court of Appeal ruling in Iconix about post-sale confusion in the context of brand infringements is due to be considered by the Supreme Court. So, we may well see some definitive guidance on this developing area of trade mark law.
Increased fines for PECR breaches
Finally, to align with UK GDPR, the new Labour Government intends to increase PECR fines (e.g. for unsolicited electronic marketing) from the current maximum of £500,000 right up to £17.5 Million. We expect this 35 times increase in sanctions to lead to much more push-back on ICO investigations and fines for alleged breaches of the Privacy & Electronic Communications Regulations.
What we saw in 2024
Directors and IP infringements
In the Lifestyle Equities case, the UK Supreme Court overturned decades long case law by limiting the personal liability of Directors for IP infringements committed by their companies. This is likely to make it harder for claimants to enforce IP rights against companies that have little or no assets. In November, in Sky -v- SkyKick, the Supreme Court also gave its ruling on questions of “bad faith” in trade mark registrations, curtailing the extent of Sky’s registered trade mark protection. A fortnight later, the High Court also delivered a significant judgment in Thom Browne -v- Adidas cutting back Adidas’ trade mark protection for its iconic “three stripes” brand.
Data Subject Access Requests (DSARs): litigation on the rise
We have also seen a trend of Data Subject Access Requests being litigated. A stand-out case this year was the decision in Harrison -v- Cameron, where the English court refused to order the disclosure of the identities of individuals with whom the defendant had shared the claimant’s personal data. The court balanced the rights of the requester against those of the individuals and came down in favour of the latter. Particularly as the Labour Government has dropped plans to widen the derogations for responding to DSARs, we expect to see the courts increasingly used to determine whether DSAR requests are excessive or abusive.
Copyright and craftmanship: the WaterRower ruling
There was a very significant decision in the WaterRower case about copyright in physical objects (in this case a rowing machine). For several years the English courts have wrestled with the question about whether UK and EU laws are compatible regarding copyright in works of “artistic craftsmanship”. In this case the judge finally grasped the nettle and said the UK applies a higher test to establish copyright protection than the EU does. However, we anticipate more cases as parties continue to attempt to push IP protection beyond the temporal limits set by design rights and copyright.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2025
Dispute resolution trends and predictions
This insight is part of our wider report – "Dispute resolution trends & predictions" – which includes comprehensive analysis from our specialists together with valuable viewpoints from our clients.
