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- 1. IP and data issues in the cloud – the UK legal perspective Ukraine IT Conference – 9 September 2014 Daniel Tozer, Partner
- 2. IP and Data in the Cloud • What do we mean by “cloud”? • Issues for service users • Cloud storage issues • Issues for service providers
- 3. What is cloud computing?
- 4. User content in the Cloud – main IP issues
- 5. Users losing the crown jewels? Uploading valuable information
- 6. Which country is relevant? • Where is your data? • Who owns the IP rights? • What’s the governing law?
- 7. Once the data is there, who can see it?
- 8. Who is liable? • Infringing service • Infringing content
- 9. What do your software licences say? • Rights • Cost
- 10. What happens at the end? • Access/delivery up of your data • Migration to new provider • Is your data really deleted at the end of the contract?
- 11. Put it in the contract, right?
- 12. What should the service user be worried about?
- 13. UK legal issues re Cloud storage • No general “fair use” exception • “Time Shifting” • “Space Shifting”
- 14. Right of reproduction vs right of communication • Line of cases • Digital lockers
- 15. Two key tests re. communication right • New technical means • New public
- 16. US view
- 17. Patent wars ahead? Alexander Graham Bell
- 18. Patent disputes – which jurisdiction?
- 19. Who do you sue?
- 20. More questions than answers Thank You
- 21. IP and data issues in the cloud – the UK legal perspective Ukraine IT Conference – 9 September 2014 Daniel Tozer, Partner
Notes de l'éditeur
- Welcome and intro
- Contents
- Definitions
- Issues re Cloud storage/B2C Cloud entertainment services: copyright protection in the Cloud “Time shifting” and “space shifting” Private use/copying exception Issues for service providers: patents Protection Infringement
- Protecting IP/data/confidential information in the Cloud Users of Cloud services upload IP/confidential information to the Cloud Business sensitive information CRM data and other databases Sales information Personal data Copyright works (e.g. using collaborative Cloud based word processing apps) Other digital content
- Practical and legal issues Where is your data? What IP laws are there to protect your data where it is stored? Processing data outside the EEA? Who owns any newly created IP rights? Database rights Copyright Bespoke software (APIs) GUIs Applicable law
- Practical and legal issues How secure is your data? Which personnel can access your data? Subcontractors? Who else shares the server(s) on which your data is stored? Disaster recovery Who else has access to your data? Individuals Governments Other 3rd parties Can you recover losses in the event of a security breach? Regulatory fines PR damage Internal costs dealing with fall out
- Practical and legal issues Liability for IP infringement Infringing service Liability of the Cloud customer Liability of the service provider Infringing content/data Liability of the Cloud customer Liability of the service provider
- Software licensing Do you have the right to have a third party host your applications? What are the cost implications?
- How to protect yourself Mostly a question of contractual protections Cloud service contracts are often click-wrap contracts – no negotiation? Pro-service provider Commonly derived from a B2C style contract Might not be appropriate for sensitive IP assets Need to consider on a case by case basis Evaluate nature of assets going in the Cloud and negotiate the contract appropriately What service are you paying for? Are you hiring a bus, a Rolls Royce or an armoured car?
- What you should be looking for/things to consider Ownership of IP rights Disclaimers/limits on liability Indemnities IP infringement Unauthorised disclosure of data Rights to specify location of data Tier 1, Tier 2, Tier 3 data centres Dedicated server(s)? Approval of sub-contractors/other personnel NDA obligations Audit rights Re security measures and access Post term return of data How quickly Format
- Personal use No general “fair use” exception “Time Shifting” - s70 of CDPA “making in domestic premises of for private and domestic use of a recording of a broadcast … solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe the copyright in the broadcast” Obvious application to video recorders, recordable DVDs, set top boxes What about Cloud services such as network PVRs? “Space Shifting” Record in one place, view from another. Personal copying? s70 may apply Again, what about network PVRs
- 2 key copyright issues – reproduction and communication right New private copying exemption came into force 1 October 2014 “Format Shifting” already tolerated by content industries in practice New s28B CDPA will permit: Personal copy of work by an individual For private non-commercial use only How will this be applied in context of network PVR services? ITV vs TV Catch Up Live streaming of free to air TV over the internet March 2013 ECJ ruled streaming did constitute a new ‘communication to the public’ and therefore required authorisation But s73 CDPA exception for live retransmission by cable of PSBs broadcasts TV Catch UP has now also launched cloud based on demand catch up functionality Watch this space
- Capitol sued music file was migrated not reproduced Any distribution was non-infringing because of available defences? Fair use doctrine First sale doctrine (ie exhaustion) Court held Reproduction right infringed “when a user downloads a digital music file or digital sequence to his hard disk, the file is reproduced on a new phonorecord within the meaning of the Copyright Act” “Significantly, [reproduction] is not defined as ‘to produce again while the original exists’” Distribution right infringed “electronic file transfer is plainly within … the definition of “distribution” ReDigi did not contest this Regarding ReDigi’s defences, Court held: Fair use Uploading music files to Cloud Locker for personal use (“space shifting”) was within fair use doctrine – not contested by Capitol However, uploading music files incident to sale was outside the scope of fair use – use is commercial in nature and deprives content owner of commercial value First sale First sale doctrine applies to distribution “by the owner of a particular copy or a phonorecord … of that copy or phonorecord” Or, first sale doctrine applies to material items
- New technologies/business models mean new patent wars – follow the money Cloud service providers want to protect their services Copyright Patents Jurisdictional issues Patents are territorial in nature
- Consider a UK patent covering a Cloud service UK patent covers server side and client side aspects of a Cloud service Competing service operated from US UK users use competing service Can the UK patent owner sue the US competitor? s60 Patents Act 1977 s60(1) provides that a UK patent is infringed only if a person does any of the following acts in the UK Makes, disposes of, uses or imports the product covered by the invention Uses the process covered by the invention or offers it for use in the UK Disposes, uses or imports any product obtained by means of a process covered by the patent s60(2) deals with secondary infringement Supplies or offers to supply in the UK a person with the means of putting the invention into effect in the UK
- Options for the UK Cloud provider (patent owner) Sue the users Direct infringement: is the user using the patented invention in the UK? Might not be particularly attractive Sue the competitor Direct infringement: joint liability with user? Direct infringement: use of server side aspects of patented invention, but is it in the UK? Indirect infringement: does supply of client side software amount to supply of essential means?