The legal issues thrown out by the cloud, or cloud computing, are regularly analysed and commented on, but the concept of the cloud is constantly evolving and re-visiting these issues, or looking at them from different perspectives is therefore a useful exercise despite the range of commentary already available.
In the technical sense, an agreed definition of the cloud seems to be the provision of storage solutions for entities or individuals to keep data, content, information, software etc remote from that entity's or individual's own computing systems. Looking at it from this perspective, legal commentary often focusses on regulatory and data protection/privacy issues. From a service provider's perspective these are certainly incredibly important considerations. But from a user's perspective they are only one of many legal issues to contend with (either knowingly or unknowingly).
First, what does a user think "the cloud" is. The user experience is to switch on the computer or tablet, connect to the internet, and look for stuff. This might be content from the BBC iPlayer, or Netflix, or Amazon Instant Video, or Spotify; it might be to download content from the user's own prior iTunes (or other e-retailer) purchases stored in the cloud, or as a result of a new purchase; it might be to access or download content from a myriad of other websites, some well-known like YouTube, Twitter or Twitch, others not so well known (or not known at all – just thrown out by the search engine), and often not knowing quite what that content is until the content is opened or downloaded. This is the user experience and the user does not really pay much attention to when and whether they are straying from one type of offering to another, provided he or she gets the "stuff" they are looking for. In media content terms, I suppose this falls within the developing concept of the "internet of things".
So when the user accesses this cloud (in the broadest sense of things) or internet of things, the user is stepping into a minefield of legal issues. Copyright infringement is just one of the many pitfalls. The position of people who post things on the internet is pretty clear: if they post content which they don't own or have an appropriate licence to exploit, they are infringing the copyright of the owner.[1] The position of the service provider that provides the platform that enables the content to be posted is also clear; in broad terms it is not liable for copyright infringement so long as it acts to take down the infringing material following notice.[2]
But then we have the user. What if the user finds a picture on a website and copies it into, say, a piece of marketing, or a Powerpoint presentation. This is infringement of copyright unless the user has permission from the copyright owner. The user might assume that the picture is available and authorised to be copied (the posting might even say it is) – but what if it isn't (and the posting notice is wrong). Is it a defence to reasonably believe something to be ok when it isn't? (Whilst there is a defence that a person did not know material is copyright, the answer is otherwise no!)[3]
The same analysis applies to viewing something on a UGC website: if something is there and hasn't been taken down, can the user assume the owner of the copyright doesn't mind it being there and being viewed or downloaded. What if the owner hasn't spotted that there has been an infringing post yet (content owners, however big and powerful, will struggle to keep on top of the whole community of the internet. In making the assumption, is there a difference between widely used and known websites like YouTube or Twitter (should an owner really be checking if its content is being posted on these sites without permission) and less well-known sites? Would it be fair to assume that if a website carries advertising it is a commercial operation that has licensed in the content available on its website?
In the UK new rules allow content owners to require service providers to provide contact information for users who have been file-sharing – passing around copies of the owner's content (such as a film, or music recording) without permission.[4] These were used last year by a UK adult entertainment company that then sent letters (in a form approved by the court) to people it had adjudged had illegally shared its content.[5] But where does file-sharing like this begin and end? Is there a difference between intentional and inadvertent file-sharing? How will the user, switching on his or her computer and looking for "stuff" determine when they have strayed from looking at or downloading "stuff" that is ok to look at or downloading "stuff" that is there without permission and so technically an infringement of copyright? You might argue that the user should stick to viewing or downloading from services that the user subscribes to or knows are freely available (like BBC iPlayer), but we know perfectly well that this is simply not what users do.
So when should the law intervene? Happily, there is a degree of common sense within the entertainment industry: record companies have long made it clear that they would not take action against individuals format shifting between their own devices for personal use, even though it was technically a breach of copyright.[6] Happily also there are moves in the UK (The Copyright Hub initiative) to make legitimate licensing simpler; the argument being that if legitimate licensing is simpler, people are less likely to use unlicensed material. These are helpful, but they still do not address the fundamental issue that user behaviour will simply ignore copyright law considerations for the most part.
Footnotes
1Depending on the situation, this would constitute copying or communicating the work to the public if they did not have an appropriate licence.
CDPA 1988 s.16(1) Exclusive rights of copyright owner to (a) copy the work... and (d) communicate the work to the public
CDPA 1988 s.16(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
CDPA 1988 s.17 Infringement of copyright by copying includes storing the work in any medium by electronic means.
CDPA 1988 s.20(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include– (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.
Svensson v Retriever Sverige AB (C-466/12) – The provision of a hyperlink will constitute communication to the public
2 Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) deals with liability of ISPs
3CDPA 1988 s.97(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
But otherwise, the right is infringed whether or not the defendant appreciated that what he was doing infringed copyright or whether he intended to infringe [Baigent v Random House Group Ltd [2006] E.M.L.R. 16]. Innocence is not a defence to a claim for primary infringement of copyright. [e.g. Mansell v Valley Printing Company [1908] 2 Ch. 441]
4Digital Economy Act 2010 s.4 inserted new provision s.124B into Communications Act 2003 – ISPs will be obliged to provide copyright owners with anonymised copyright infringement lists (CILs). On the basis of this information, a copyright owner could apply to the courts for a Norwich Pharmacal Order to obtain the names and addresses of subscribers on the CIL.
"124B Obligation to provide copyright infringement lists to copyright owners
(1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if—
(a) the owner requests the list for that period; and
(b) an initial obligations code requires the internet service provider to provide it.
(2) A "copyright infringement list" is a list that—
(a) sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but
(b) does not enable any subscriber to be identified.
(3) A subscriber is a "relevant subscriber"in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code."
Norwich Pharmacal v Customs & Excise Commissioners [1974] AC 457
5Golden Eye International v Telefonica UK Ltd [2012] EWCA Civ 1740 -The High Court granted a Norwich Pharmacal Order to Golden Eye International for Ben Dover Productions against Telefonica UK to disclose personal details of individuals who had been file sharing. The Court of appeal subsequently granted Norwich Pharmacal Orders to the other claimants (all IP owners of pornographic films). The court took objection to some of the contents of the draft letter and set out guidance on the correct way to proceed.
6 Private copying is no longer an infringement: The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 which came into force on 1 October 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
