ALAI Congress 2012
Kyoto, October 18, 2012

Breathing Space for
Cloud-Based Business Models

Prof. Dr. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague

Contents• Cloud-based services• Interests involved• Legal issues– Exceptions– Safe harbours– Injunctions• General guidelineCloud-Based Services

For the general publicFor individual subscribers

For groups

Interests involved

Stakeholders• copyright owners: appropriate reward?
• platform providers: sufficient legal certainty?
• internet users: mere convenience?
platformproviders

copyrightowners

innovation policies
internet users

Exceptions

Private copying

liberalapplication

concerns
about abuse(Germany)(Mexico, Spain)

time shifting,potentially porting(UK, US)Private copying• might exempt personal access services,e.g. online video recorders• requires initiative for copying to betaken by the private user
• national regimes may cover copying on
behalf of private users• challenge of establishing adequate
remuneration scheme

Mere copying or making available?

storage of anindividual copy foreach private users

master copy as abasis for executing
individual requestsRe-transmission?

over-the-air
television andradio signals

transferred to cloud
video recorders ofprivate users

Further exceptions

facilitation ofcloud use forprivate users

exemption required
for educational
institutions?

exemption required for cultural
heritage institutions?
(extended collective licensing in
Norway and Sweden)

Safe harbours

Starting points• might be available for hosting of thirdparty content (passive role)• provision of technical means ≠ making
available/communication to the public• no general monitoring obligation

Example: EU safe harbour

CJEU, 23 March 2010, case C-236/08,
Google/Louis Vuitton• Google = host eligible for safe harbour?
‘…it is necessary to examine whether the role
played by that service provider is neutral, in thesense that its conduct is merely technical, automaticand passive, pointing to a lack of knowledge orcontrol of the data which it stores.’ (para. 114)

• financial interest which Google has in its
advertising service is not decisive(para. 116)CJEU, 12 July 2011, case C-324/09,
L’Oréal/eBay• new standard of ‘diligent economic operator’‘...it is sufficient, in order for the provider of an
information society service to be denied entitlement
to the exemption [for hosting], for it to have beenaware of facts or circumstances on the basis ofwhich a diligent economic operator should haveidentified the illegality in question...’ (para. 120)• still no general monitoring obligation• but own investigations relevant

CJEU, 12 July 2011, case C-324/09,
L’Oréal/eBay• imprecise or inadequately substantiatednotifications may also become relevant‘...the fact remains that such notification represents,
as a general rule, a factor of which the national court
must take account when determining [...] whether
the [service provider] was actually aware of facts orcircumstances on the basis of which a diligent
economic operator should have identified theillegality.’ (para. 122)

Current development in the EUfrom general
exemption frominvestigations

to obligation toseriously consider
even imprecise
notifications

Notice and takedownWhich procedural steps?

noticetakedown?

Departure from takedown?
• notice-and-notice in Canada’s new CopyrightModernization Act (Bill C-11)– need for communication instead of removal?
– safeguard against unjustified removal required?
– system of counter-notices insufficient?

• notice-and-action initiative in the EU– quicker takedown for rights owners– increased legal certainty for ISPs
– more safeguards for fundamental rights

Injunctions

CJEU, 12 July 2011, case C-324/09,
L’Oréal/eBay• injunctions against online platforms‘...to order an online service provider, such as aprovider making an online marketplace available tointernet users, to take measures that contribute not
only to bringing to an end infringements committedthrough that marketplace, but also to preventing
further infringements...’ (para. 131)• basis: Art. 11 EU Enforcement Directive,
Art. 14(3) EU E-Commerce DirectiveCJEU, 12 July 2011, case C-324/09,
L’Oréal/eBay• no general and permanent prohibition on theuse of specific material• but measures against repeat infringers‘...if the operator of the online marketplace does notdecide, on its own initiative, to suspend the[infringer] to prevent further infringements of thatkind by the same seller in respect of the same trade
marks, it may be ordered, by means of an injunction,
to do so.’ (para. 141)

Filtering

Delicate balancing of legal positions• copyright owner: erosion of copyright?
• platform provider: too heavy a burden?
• internet users: sufficient safeguards?
free speech/
privacyprotection

copyright protection

freedom ofconducting
a businessSpecific filters permissible?
• e.g. text filters (Germany, Netherlands)• acceptable burden for ISPs?
• encroachment upon freedom of speech?
Blocking of websites preferable?
• more efficient than procedures against
individual users?
• industry roundtables deciding on online
contents?

General guidelinePreamble of the Berne Convention‘The countries of the Union, being equally
animated by the desire to protect, in as
effective and uniform a manner as possible,
the rights of authors in their literary andartistic works,…’

Need to fortify the foundations

not only legal
legitimacy

but also social
legitimacy

The end. Thank you!
For publications, search for‘senftleben’ on www.ssrn.com.

contact: m.r.f.senftleben@vu.nl