ALAI-Congress2012 – KYOTO
Questionnaire

Blaca (United Kingdom), replies provided by Brigitte Lindner, Florian Koempel, Gaetano Dimita
and Paul Torremans
Session 1
Developments of New Platforms
1) How would you define “The Cloud” in your country?
There is no official definition. The focus seems to be on worldwide accessibility via theInternet and on servers based ‘somewhere’, out of the jurisdiction.
Cloud services are not really new technological systems. Although a unified definition is difficult,“The Cloud” generally refers to a wide ranging possible shapes and designs. “Cloud computing“broadly describes the service of providing computer storage and computing online facilities to
its users who chose to transfer processing and storage facilities to a third party established at adifferent location.
Cloud computing services, i.e. services which offer platforms for computing services such asprocessing programs are becoming increasingly frequent amongst others given the availabilityof fast broadband, speed low prices of storage facilities and more general a higher standard ofcomputing technology (which for instance ensures the protection of the data of users of suchservices).
Cloud computing services by themselves do not raise copyright concerns; as far as copyright isconcerned the main issue relates to Cloud computing services which entail storage facilities
enabling the storage and potential sharing of third parties’ copyright protected material such as
movies or music (“cyberlockers”). Copyright comes into play if the cloud computing service is
not licensed by all right holders (notably, blanket licensing seems the solution to most cloud
activities in particular given that the cloud computing service do not know in advance what kindof Copyright material will be stored on their servers). Where copyright licensing societies exists,they offer a solution for the creative works they represent.
During a recent consultation by the U.K.'s intellectual property office on changes to copyrightthe argument has been put forward that purely “dumb” Cloud storage services should be
included within the scope of a private copying exception (without fair compensation).
Commercially it is difficult to envisage such a Cloud storage service providing a relevant offer
for consumers. Additionally, it won't be possible to differentiate within the legal drafting ofsuch a private copying exception between dumb Cloud storage services and those with added

functionality. In particular, it seems impossible to offer a Cloud storage service without
functionality; even the accessibility by the person uploading the material to the Cloud could beconsidered functionality.
Another question arises as to the place where the cloud computing activity takes place andmore specifically who is initiating the uploading, storing and downloading. However this is not a
new discussion in the online world; it is currently being considered in the context of moreestablished Internet activities (c.f. the AG opinion in Football Dataco v Sportsradar Case C
173/11: The AG advised that the act takes place where the web server is established and where
the communication is received; the case in hand concern the re-utilisation of a database but thefindings should be broadly transferable to other copyright relevant acts such as the ones
concerning cloud services)
Cloud storage specifically describes the storage of files online in data centres by third parties
which are accessible by its users from any terminal or device. Cloud storage services offer avariety of functionalities depending on their specific business model, e.g. Dropbox, mp3.com or
Megaupload. It is difficult to define cloud storage services in view of the range of activities
offered (e.g. some storage services enable the pure storage of the files stored; others – mainly
unlicensed – do not store the files but only provide a link to the same file saved earlier in orderto save storage space (so called scan and match services), e.g. Megaupload). The broad range ofcloud activities is well described in the questions to section 4 of this questionnaire. All of these
services require specific analysis: Software as a Service“ (SaaS), “Platform as a Service” (PaaS)
and “Infrastructure as a Service” (IaaS). However for the purposes of this questionnaire focus
on platform as a service, i.e. the provision of cloud storage.
In its recent consultation on changes to copyright and more specifically on the introduction ofprivate copying exception into UK Copyright law, the UK INTELLECTUAL PROPERTY OFFICE (IPO)
defined private clouds: “Private clouds allow people to store digital files remotely and accessthem over the internet, instead of storing them locally on a PC or other device.”2)

Is exploitation of works, performances, sound recordings and so on generally considered torelate to the Cloud?
The Cloud can be a very useful medium for the use of works and the like on multiple
devices at any time and place chosen by the user provided the security of the storedcontent can be guaranteed.
Yes, like any exploitation involving the reproduction and communication to the public
restricted act applied to cloud storage services (not necessarily to mere cloud computing
services which only provide computing services for which the provider owns theintellectual property rights).

3)

Are there already commercial platforms established specifically designated for the Cloudor to some extent related to Cloud uses? Can you foresee such new platforms to beestablished in the near future?
Audiovisual works:
Examples from the UK are UltraViolet and iTunes in the cloud.
UltraViolet was launched in the UK on 26 December 2011 by a consortium of film industry
companies. In a nutshell, the service presently allows the use of films which are enabledfor UltraViolet services on any device, be it a computer, a smart phone or a tablet PC.
There are plans for the future to extend this offer to include TV programmes as well.
iTunes in the Cloud features a cloud-based service by Apple for films which has been
available in the UK since March 2012. This service allows the use of movies purchased via
iTunes on iPad, iPhone, iPod touch, Apple TV, Mac or PC.
So yes, there are already some commercial platforms available. There will be more suchplatforms offering storage as well as computing services (many not yet licensed) e.g.
Dropbox, mp3.com or Megaupload.

4)

How would you evaluate the Cloud’s importance to copyright for the next few years tocome?

Cloud-based services are an innovative development which may change considerably
the ways in which works and the like are disseminated and used in the online environment.
Users will be enabled to establish their personal collection of music, films, games and othercultural products which they can access anywhere and at any time. In the near future, cloudcomputing services in the widest meaning will become increasingly important given available
external storage and broadband availability; cloud based services are predicted to constitutethe majority of internet related activities. This is the reason why the European Union
represented by the European Commission focuses on policy on cloud for instance in theEuropean Cloud Computing Strategy which will be finalised in the course of the summer 2012;
this strategy will address the framework for Cloud computing services as well as explore further
options for partnerships. One of the main advantages of such a Cloud computing service is thatit removes the need for storage capacity on the hardware to save files and to run computing
programs. E.g. more and more storage intensive programs such as virtual games are cloud
based enabling the users to access the gaming platform with handheld devices given that thelatter do not require access to enormous hardware facilities for complex computing activities ifthey can be outsourced to external online platforms.

Sessions 2 and 3－ Can the Internet Treaties of 1996 play an important role in legal issues raised by “Cloud”
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?
1.2) cloud providers that may be relevant to determine liability for the making available ofunauthorized content in the cloud environment?

11. In the United Kingdom there is no express reference in case law to cloud storage, retrieval
and dissemination services as far as the right of making available to the public is concerned.
There are however cases concerning the liability of Internet service providers for authorising
restricted acts which could be relevant for this question. It is expected that these judgements
will be applied to cloud services mutatis mutandis. The judge in Dramatico et alia v BSkyB et alia
(2012), applied the definition of authorisation relying on factors identified in the previous
judgement 20C Fox v Newzbin (2010):•

the relationship between the alleged authoriser and the primary infringer•

whether the equipment/ means supplied constitute the means used to infringe•

whether it will be used to infringe•

the degree of control of the alleged authoriser•

whether he is taking any steps to prevent infringement

12. Judge Arnold held that the operators of the Pirate Bay (which could be described as anservice similar to a cloud service provider for the purposes of copyright) authorised theinfringing activities of its users (both by copying or communicating to the public; maybe eventhrough public performance) and that their activities go beyond merely enabling, or assisting
infringement. The activities of an Internet service provider are different to a manufacturer ofhigh speed twin tape recorder. In applying the factors, established in the Newzbin case, hefound as regards the Pirate Bay:•Regarding the relationship between the alleged authoriser and the primary infringers,
he held that the features offered by the alleged authoriser were plainly designed toprovide users with the easiest and most comprehensive service possible, i.e. to promote
the download of torrent files by its users. It is not merely a passive repository of files butmoreover goes to great length to facilitate and promote the download of files by its
users

2)

•

the means supplied, i.e. the indexed torrent files constitute exactly the means necessary
to infringe•

copyright infringement is not only inevitable but is also the main objective of the service•

The website operator has the required degree of control; the website states that
torrents can and will be removed under certain conditions.

•

The website operator is not taking any steps to prevent infringement; moreover they
are expressly encouraging infringement.

Is there case law on the technological protection measures and Electronic rights
management information in the “Cloud” environment?

13. Not to my knowledge.
3)

How can we re-examine or re-evaluate the role of the WIPO Treaties with reference to“cloud” developments?

14. The Treaties address the restricted acts which occur in a “Cloud” environment, in particular
reproduction, communication to the public, and distribution (which seems mainly used in theUS). The WIPO treaties will continue to apply also in the “Cloud” environment.

Session 4– New Business Models for effective Protection of Copyright and Related rights in the “Cloud”:
Role of electronic rights management in new business models
Note: In general, services offered on the basis of cloud computing technologies are classified as“Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service”(IaaS). Under the heading of “New Business Models for effective Protection of Copyright andRelated rights in the ‘Cloud’”, the main focus is on PaaS, whereas both IaaS and SaaS are ofminor importance, since they generally do not involve the use of copyrighted works of literatureand the arts (issues of copyright in software are not discussed at this congress).
Note: This subsection focuses on successful business models of authors and rightholders whomarket their copyrighted subject matter in the cloud either themselves or via a service provider(such as, e.g. Apple’s “iTunes in the Cloud“), presumably by employing digital rights
management (DRM) and perhaps also technical protection measures (TPM).

1)

In your country, what types of cloud services are offered and/or made available byauthors and rightholders offering their copyrighted content?
For the audiovisual field, see above, Session 1, Question 3.

2)

What kinds of works are being offered in this way (e.g., musical works, literary works,
photographic works, audiovisual works, performances etc.)?
Ultraviolet: presently films, in future also TV programmes
iTunes: music, books, films and TV programmes

3)

What rights do rightholders usually transfer to the providers of cloud services?
The scope of rights which are transferred by rightholders to the providers of cloudservices depends of course on the ways in which a work may be used in a particularservice. This being said, the storage of the work in the cloud and the subsequent
streaming or downloading require at least the grant of the rights in respect ofreproduction (Sec. 17 CDPA) and of communication to the public (Sec. 20 CDPA) which
includes the making available right (Sec. 20(2) CDPA).

4)

What uses of copyrighted material are the users of such cloud services permitted?
Audiovisual works
UltraViolet grants the account holder a kind of “lifetime licence” to use UltraVioletenabled content in a variety of ways from his account in the cloud. The account can beshared by the account holder with up to five account members. Once a film has been
added to the Ultraviolet collection of the user, a variety of options for streaming thework over the internet, downloading it for offline viewing or playing it back on a disc on
a device at the user’s choice exist (so-called UltraViolet Rights). The exact scope of the
UltraViolet Rights in a particular case depends on the terms of purchase from the
UltraViolet retailer.
iTunes in the Cloud synchronises purchases from the iTunes store so that all purchases
can be used on all Apple devices such as iPhone, iPad, iPod touch, Apple TV, Mac, or aPC.

5)

Can you give any figures regarding both royalty rates and total revenue authors andrightholders receive when their works are being offered in the cloud?
This information is confidential – at least insofar as the audiovisual sector is concerned.

6)

What kind of TPM and DRM is used by these services?
The TPMs and DRM employed for the use of audiovisual works in cloud services, notably
Ultraviolet, are identical to those used in more traditional ways of use, namely accessand copy/use controls.

7)

Under the legislation of your country, to what extent are TPM protected against theirunauthorized circumvention?
UK law protects TPMs in Sections 296ZA-F CDPA. Rightholders are granted a civil right ofaction against the circumvention of an effective technological measure which has been
applied to a work as well as against the making and commercially dealing incircumvention devices and the provision of respective services. Criminal sanctions exist
only with regard to devices and services designed to circumvent effective technologicalmeasures but not with regard to the act of circumvention itself.

8)

Is unauthorized circumvention of TPM a practical problem for those offering theircontent in the cloud?
As has been indicated in the beginning, security of the stored content is paramount.
However, even the most sophisticated TPMs can be the object of manipulation. For thisreason, legal protection against the circumvention of TPMs as well as against the dealing
in devices and the provision of services designed to circumvent TPMs is vital for thedevelopment of new business models in cloud services.

A variety of business models are already available, some of the licensed by creators and rightholders.
As far as technological protection measures is concerned the legislation is in Sections 296ZA
onwards of the CDPA 1988 which constitutes the implementation of Articles 6 and 7 of theEuropean Copyright Directive. In general, technological protection measures and digital rights
management do not play a prominent role in the cloud environment; the main concern is thelimitation of the access for the owner of the specific cloud service. This is important for
copyright as well as data protection purposes, and can be achieved through different coding
mechanisms for the storing and computing in the cloud.

5 Copyright-avoiding business models
Note: This subsection focuses on business models of persons other than authors andrightholders, who build upon someone else’s copyrighted material and who – successfully or not– try not to be subject to copyright liability. Examples are services that make use of the private
copying exception (such as, e.g., personalized internet video-recorders) or which strive to benefit
from an exception to legal liability as an Internet Service Provider (such as, e.g., under the EU e-

Commerce Directive). In addition, strategies of authors who market their copyrighted works
outside of copyright (such as, e.g., under an open content or Creative Commons (CC) licence) can
also be regarded as “copyright-avoiding” business models (although technically, they are basedon copyright).
5.1 – Private copying in the Cloud1)

In your country, are there services – and if so, what kind of services are there - that offer
its users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s “Picasa”), platforms
with general public access (such as, e.g., FlickR) and mixed-forms (such as, e.g.
Facebook) but also so-called internet-video recorders and possible other forms ofprivate storage services.

2)

In legal terms, to what extent do the operators of such services benefit from its user’s
private copying exception? Are there any other exceptions under copyright law?
(note that general exceptions of legal liability are discussed under 5.2).

In the United Kingdom, there is currently no specific exception for private copying; Section 70of the CDPA 1988 only provides a limited private copying exception for the purposes of time
shifting. Following the recommendations of Professor Hargreaves in his review of intellectual
property, May 2011, the UK Government represented by the IPO is considering the introductionof private copying exception (without fair compensation) but the actual scope is subject to an
ongoing consultation. Based on the recommendations by Professor Hargreaves, Government
intended to introduce a narrow private copying exception, allowing copying of content legally
owned by an individual (such as a CD or DVD) to another medium or device owned by that
individual (such as a personal multi-functional device or an mp3 player), for their own, strictly
personal, use. In their rather creative impact assessment this would create a new market for
iPods and similar devices which could grow the UK economy by up to £2 billion per annum atthe upper end of possible outcomes. It is not clear whether the thinking of the UK government
has evolved as of July 2012.
5.2 – Copyright-avoiding models on the basis of – presumed – exceptions to copyright liability
or limited interpretations of the “making available” right1) To what extent do the operators of cloud services benefit from a narrow interpretation of
the making available (or communication to the public, or public performance) right?
It is debatable whether the act of making available or communicating to the public or public
performance arises in the scenario of a purely private cloud storage service, i.e. if the person
storing the files he owns on a third party storage platform is the only person accessing the files.
Whilst there certainly is making available and communication, the question of whether this is“to the public” needs further consideration. It certainly is making available or communicating to
the public in case various persons have access to specific cloud storage. This could for instanceoccur if the access key has been shared and there is no limitation on access to the storage
facility provided by the cloud computing service. It is not clear whether the transmission of filesof one person to the cloud storage followed by him re- accessing it can be considered to be “tothe public.”
Similar questions arise whether storing and accessing files from the cloud constitutes a public
performance; in particular debatable is whether the public is present at the place where thecommunication originates if the place of uploads onto the cloud storage service is the same as
the place of download (e.g. same user of the service). C.f. Recital 23 of the Copyright Directive.
2)

According to the law in your country, what is the legal (primary or secondary liability contributory infringement or vicarious liability; aiding and abetting, other liability suchas an inducer, “Störer”) of the provider of cloud services with regard to copyright
infringing content uploaded by its users?

As elaborated in response to section 2 and 3 (number 1) of this questionnaire the provider ofcloud services is likely to be considered as authorising in the United Kingdom; however, this has
not been tested as regards cloud services (but as regards Internet service providers such as the
Pirate Bay and Newzbin).
3)

In your country, do cloud service providers benefit from an exception to liability (such as,e.g., under the EU e-Commerce Directive), and if so, to what extent (e.g., total
exemption from liability or exemption only from duty to pay damages)?
Please cite to and briefly describe statutory provisions and relevant case law.

As a member of the European Union the United Kingdom has implemented the e-Commerce
Directive and in particular Article 14 thereof (Section 19 of the electronic Commerce (ECDirective) Regulations 2002). This limits the liability of Internet (including cloud) service
providers if they have no actual knowledge of the infringing content.
There are limitations to the limitation of liability of Internet service provider: Once he receives
actual knowledge of the infringing content the cloud service provider like any other Internet
service provider must act to remove or disable access to the infringing content. The limitation
does also not apply if the cloud service provider is aware of facts or circumstances from which
the illegality of the content in question should have been apparent.

4)

Also according to the law in your country, what duty of care is owed by cloud service
providers to monitor and eventually remove copyright infringing content?

Recent cases by the Court of Justice of the European Union have established some parametersof the duties of care of Internet service providers to monitor. Whilst they have provided
guidance in clear-cut cases, they have not positively stated the actual requirements of Internet
service providers In the L'Oreal case (CJEU Case C-324/09) the Court denoted that the Internet

service provider needs to undertake further activities if he has been playing a more “active role“in the infringement in order to qualify for the limitation of liability under the e-commerce
directive; in the SABAM cases (e.g. SABAM v Netlog: C-360/10), the Court stated that theInternet service provider cannot be obliged to install a general filtering system, covering all its
users, in order to prevent the unlawful use of musical works, as well as paying for it. (c.f. Article
15 e-Commerce Directive). The cases referred to the facts at hand when deciding the duty ofcare; a positive definition of the duty of care cannot be deduced.
5)

What evidence must a rightholder present in order to have infringing content removed?

This depends on the approach taken by the Internet service provider; for instance Google
operates a policy of flagging inappropriate content including for copyright infringement.
On the website they outline what information is required before removing the video for
copyright
infringement(copyright
infringement
notification
http://www.youtube.com/t/copyright_notice .
6)

In your country, are there any contracts that have been concluded between cloudservice providers and rightholders concerning the use of copyrighted material by theusers of the cloud services?

We assume that there are contracts between cloud service providers and right holders which
also cover the use of copyright material by the users of the cloud service but we have no
detailed knowledge of the exact nature of such agreements.
7)

In your country, what copyright-avoiding cloud services are operating successfully, andwhat services that sought to be avoiding copyright have been banned and eventually
shut down?

8)

In your country, are there any legislative changes under discussion as regards theliability of service providers who provide for cloud services? In particular, do you thinkthat liability of service providers will be reduced or, rather, increased?

As far as the liability of service providers in general is concerned, the e-Commerce Directive isdue for review at European Union level; the scope of such review is not apparent as of yet. In asimilar vein, the Enforcement Directive is also up for review potentially also addressing the roleof service providers.
9)

Do you see any progress regarding filtering technology?

According to our information filtering technology is available and also already applied by someInternet service providers; c.f. Audible Magic and Cleanfeed. We note that deep packet
inspection is not widely applied due to concerns with data protection as well as available
infrastructure.

5.3 – “Copyright-avoiding” business models operated by authors for the “Cloud”
1)

In your country, is there a noticeable use of “copyright-avoiding” business models, such
as Creative Commons (CC) or comparable open content licenses by rightholders withrespect to cloud-based exploitations of works?

2)

If so, in what areas (music, literature, audiovisual works, scientific works etc.) are suchlicenses most often used?

3)

Are there any figures available as to how the authors of such works generate income
from such cloud-based exploitations, and how much?

4)

Also in your country, what legal obstacles are authors faced with when making use ofopen content and CC-licenses?

We understand that Creative Commons is a licensing system based on Copyright; the rightholder decides (ideally based on an informed choice) to give away his rights under certain
specific conditions according to his choice: for instance stipulating the non-commercial natureof the intended use. Some business models are in operation based on Creative Commonslicences (e.g. Jamendo) but we are not aware of any noticeable impact on the use of music orother creative works through the availability of such open content licenses (maybe FlickR is amore relevant example). We do not see any problems with Creative Commons licences if theauthor is aware of the limitations of using such a licence, in particular in view of the limited
financial remuneration; he cannot be a member of a collecting society and participate amongst
others in public performance revenue or private copying remuneration.

Examples might be the unenforceability of such licences; the refusal to award damages forunauthorized commercial use of works that have been made available only for non-commercial
use; collecting societies refusing to represent authors who want to market some of their works
under a CC-licence; the exclusion of CC-authors from receiving remuneration under a private
copying regime etc.

Session 6－Future Model of One-Stop-On-Line Licensing in the Cloud Environment
1) Does your country have specific private international law rules for copyright in particularand for intellectual property in general or are there general rules of private international
law that apply in these circumstances? In particular do your country's rules of judicial
competence (personal jurisdiction) make it possible to sue a foreign intermediary who
makes it possible for infringements to occur or to impact in the forum? Which law

applies in such instances? Would the law applicable to the primary infringement apply?
Would the law of the intermediary's residence or place of business apply?
There are no specific rules for intellectual property. Our intellectual property legislation
remains silent on this point. In the private international law instruments one finds thereference to the lex loci protectionis in the Rome II Regulation and in terms of choice oflaw that is bound to be the starting point. In terms of jurisdiction the Brussels I
Regulation will play a key role and specifically articles 2 and 5(3) (as clarified in the
Painer case). It is here that local damage may play a role in the jurisdiction context.
Court in the UK have only just accepted that they have jurisdiction over cases thatinvolve foreign copyright, so it should not come as a surprise that there is still a lot of
uncertainty in this area and no cases that deal really with the scenario at hand. It is
encouraging though that the Supreme Court seems prepared to seek inspiration in thework that has been done by the CLIP group (the CLIP principles were referred to in the
judgment) and does take into account the academic publications in the area and the
published version of the ALI Principles.
2) Does your national collective rights management organisation grant multi-territorial
licences and are there cloud-specific licence models when it comes to collective
licensing? If so, does this include rules on cross-border contracts (including jurisdiction
and choice of law aspects)?
Multiterritorial licences are granted, but no further information was available on a nonconfidential basis.

Pleasesend
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toishiara@translan.commailto:sam@icla.ie by 30 June 2012

Mr

TomokiIshiaraat