ALAI 2012 K by Arnout Groen1 1) How Would You Define “The Cloud” In

THE NETHERLANDS ALAI 2012 KYOTO COPYRIGHT IN THE CLOUD by Arnout Groen 1 SESSION 1 - DEVELOPMENTS OF NEW PLATFORMS 1) How would you define “The Cloud” in your country? The Cloud is an international phenomenon and therefore the most commonly used definition of ‘The Cloud’ is an international definition. The definition that is often referred to in Dutch literature is the definition given by the American Institute of Standards and Technology that has defined the Cloud as: “A model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” 2 In a more everyday use ‘The Cloud’ is defined as accessing software or other content that is stored remotely on a network of computers (often by third parties) through the internet by personal devices that function as terminals. 3 The two main advantages for consumers are that they do not need to store (a lot of) content on their own devices and that the information is available to them at any time or place (even if they are not in the vicinity of their own computer). The services offered in ‘the Cloud’ can take many forms: any kind of use that can be made through a computer can be cloud-based. 4 Therefore it has been commented that ‘the Cloud’ is not really a new technological system but rather that it is some sort of return to the ‘mainframe computer’ (of the early 70s) where ‘computers’ of the individual users were used as terminals to gain access to the applications and/or content of a central computer thereby allowing users to use applications and access/store data and to use the power of the central computer. The main 1 Advocaat at Hofhuis Alkema Groen (Amsterdam) and researcher at the University of Utrecht (CIER). 2 Peter Mell and Tim Grance, The NIST Definition of Cloud Computing, Version 15, 10-7-09, csrc.nist.gov/groups/SNS/cloud computing/cloud def-v15.doc. Also: L. Ferreira Pires, 'Wat is cloud computing? ', Computerrecht 2011/63; K. Sommer, ‘ Cloud computing: zegen, ramp of uitdaging? ’, P&I 2009 (afl. 6). 3 Downloading and subsequently storing software or content on the user’s computer is not included in this definition. One of the essential characteristics of The Cloud is that the content remains stored in the Cloud and it is only used on the terminal. 4 Each of these different forms have – again – different characteristics and different definitions, such as Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service” (IaaS). 1 difference between the ‘mainframe computer’ and ‘the Cloud’ is that the central computer is now a server that is often controlled by third party providers. With regard to defining ‘the Cloud’ it is also worth mentioning that some are skeptical about (what they call) “the cloud-hype” and see it as little more than a marketing tool. They do not see in what precise respect “the Cloud” is fundamentally different from the distribution of content/information through internet-websites that we have known on a widespread scale since the early 90s. Oracle’s CEO Larry Ellisson is widely quoted: “ The interesting thing about cloud computing is that we’ve redefined cloud computing to include everything that we already do. I don’t understand what we would do differently in the light of cloud computing other than change the wording of some of our ads… ”. 5 2) Is exploitation of works, performances, sound recordings and so on generally considered to relate to the Cloud? Although the use by consumers of Cloud-solutions is rapidly growing there is no specific category of works or performances that is commonly exploited by Cloud only. All types of content are still commonly exploited by other means as well, although we see a trend that f.e. with regard to audio and audiovisual media traditional outlets distributing physical products (such as record stores) are having economic difficulties because demand is shifting to both online purchase of physical products as well as online purchase of content that is distributed by Cloud solutions. A main driver for this economic trend is off course also the wide-spread distribution of illegally distributed audio and audiovisual media through P2P-networks (that in most instances themselves fall within the scope of a Cloud service as defined above). 3) Are there already commercial platforms established specifically designated for the Cloud or to some extent related to Cloud uses? Can you foresee such new platforms to be established in the near future? Nearly all computer users today and even a greater portion of internet users utilize some sort method of Cloud computing and there are many platforms that have specifically been designated for Cloud uses. Given i.a. the increasing availability of fast broadband, 6 a higher penetration of handheld devices (with limited storage) 7, low prices of storage facilities and more general a higher standard of computing technology (which for instance ensures high quality and fast distribution through the cloud as well as f.e. the protection of the data of users of such services) we expect that more users will see benefits in Cloud solutions and will place more of the functions and content 5 Larry Elisson, Speech at Oracle Open World 2008, 25 September 2008. 6 The penetration of fixed broadband connections in the Netherlands is 40,6% (with 60,5% of fixed lines providing speed of 10 Mbps and above). 7 At the moment the penetration of mobile internet devices in the Netherlands is 49,2% (which is up 11,2% year on year). 2 that are currently stored on their own computers in the Cloud. We therefore foresee a growth of the market of Cloud based solutions. 4) How would you evaluate the Cloud’s importance to copyright for the next few years to come? In the coming years the Cloud will gain importance as a method for both rightholders and users to distribute and use works. The Cloud will considerably change the ways in which revenues are made in the distribution chain of copyrighted content. The combination between technological protection measures and the ability to deliver ‘content as a service’ (rather than ‘content as a product’) provides for huge commercial opportunities and will give rightholders greater control over their works. These new usages and business models will pose various interesting questions to copyright (but also to copyright law as a system). Depending on the dominance (and success of) Cloud-distribution we could expect renewed questions with regard to exhaustion of copyright (or the interests that this concept originally sought to protect), contractual exclusion of copyright exceptions, and the relation between TPMs and copyright exceptions. In addition to these issues (and the issues addressed in this questionnaire) questions can come up with regard to territoriality and the freedom of services (spurred by the technical possibility to exploit the same work in different countries against different prices), and f.e. with regard to possible database rights in the collection of materials that the Cloud provider (and possible conflicts between database-rights and copyrights). SESSIONS 2 AND 3 －－－ CAN THE INTERNET TREATIES OF 1996 PLAY AN IMPORTANT ROLE IN LEGAL ISSUES RAISED BY “C LOUD ” BUSINESS ? 1) Is there any case law to be found in your country and/or examples of (good) practices concerning: 1.1) the right of making available to the public with reference to “Cloud” storage, retrieval and dissemination? There is no Dutch case law specifically with regard to Cloud storage. However, in recent years there were a number of cases with regard to the right of making available to the public by hosting providers and bit torrent/P2P-websites that can provide some guidance with respect to the right of making available to the public in connection with Cloud storage, retrieval and dissemination. As a general rule it has been accepted that putting copyrighted content on a (cloud) website that is accessible to the public is a form of “making available to the public”. This will also be the case 3 when the content is put on the website in such a way that it is accessible only to friends and relatives. In view of existing case law it seems likely that ‘non-public’ must be narrowly interpreted and confined to sharing content with a closed circle of relatives and friends or a similar group. 8 This is because the case law requires fairly close personal ties between the persons concerned if the sharing is to qualify as ‘non-public’. Close ties of this kind do not generally exist in the case of social networks such as Facebook and Myspace. 9 The question whether the user that is putting content on a website is ‘making available to the public’ is therefore a fairly straightforward question and the answer to that question automatically follows from standard case law. In contrast, the question whether the Cloud storage provider is making content available is more difficult. In the Dutch landmark case between the Scientology Church and the hostingprovider XS4ALL the Court in The Hague held that an Internet Hosting Provider is not ‘making available to the public’ because it merely provides the technical facilities for enabling the communication to the public by others. 10 In this decision the Court made direct reference to the Agreed Statement of the WIPO-treaty that expressly excludes the mere provision of technical facilities from the scope of protection offered by the exclusive right of making available to the public.

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