Breathing Space for Cloud-Based Business Models: Exploring the Matrix of Copyright Limitations, Safe Harbours and Injunctions Exploring the Matrix of Copyright Limitations, Safe Harbours and Injunctions

• Author: Martin Senftleben
• Position: Ph.D.; Professor of Intellectual Property, VU University Amsterdam; Senior Consultant, Bird & Bird, The Hague
• Pages: 87-103

Breathing Space for Cloud-Based Business Models

2013

87

4

Breathing Space for Cloud-

Based Business Models

Exploring the Matrix of Copyright Limitations, Safe Harbours

and Injunctions

by Martin Senftleben, Ph.D.; Professor of Intellectual Property, VU University Amsterdam; Senior Consultant, Bird

& Bird, The Hague.

© 2013 Martin Senftleb en

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Recommended citation: Mar tin Senftleben, Bre athing Space for Cloud-Based Busine ss Models; Exploring the Matrix o f

Copyright Limitations, S afe Harbours and Injunctions, 4 (2013) JIPITEC 2, par a 87

Keywords: Cloud Computing; Economic Policy Concerns; European Law; Competition Law

A. Cloud-Based Service

1

Before embarking on a discussion of breathing space

for cloud-based business models, it is necessary to

clarify the type of websites that will be addressed

  

the conceptual contours of the ‘cloud’,1 a wide va-

riety of online platforms inevitably enters the pic-

ture. If the ‘cloud’ is equated with the Internet, the

discussion may even degenerate into a general de-

bate on the scope of copyright protection in the di-

gital environment.

2

To avoid this generalization, the present inquiry will

focus on services that offer individual users the op-

portunity of storing copyrighted material on an on-

Abstract: Cloud-based services keep form-

ing, changing and evaporating like clouds in the sky.

       

and music to social media and user-generated con-

tent platforms. The copyright issues raised by these

platforms seem as numerous as the liquid droplets

and frozen crystals constituting clouds in the atmo-

sphere of our planet. As providers of cloud-based ser-

vices may seek to avoid dependence on creative indus-

tries and collecting societies, one of these questions

concerns the breathing space that copyright law of-

fers outside the realm of exclusive rights. Which lim-

itations of protection can serve as a basis for the de-

velopment of new business models? Which safe har

bours may be invoked to avoid secondary liability for

copyright infringement? Which obligations may result

from injunctions sought by copyright owners? After

outlining relevant cloud services (section 1) and iden-

tifying the competing interests involved (section 2),

    -

tations, safe harbours and injunctions (section 3). The

analysis will yield the insight that the most effective

protection of copyright in the cloud is likely to result

from acceptance of a compromise solution that, instead

of insisting on the power to prohibit unauthorised use,

leaves room for the interests of users and the business

models of platform providers (concluding section 4).

2012

Martin Senftleben

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line platform.

2



the inclusion of various types of platforms and ser-

vices. A distinction can be drawn, however, with re-

gard to the size of the target audience:



an online platform for posting photographs,

such as Flickr, or an online platform for posting

videos, such as YouTube, allows individual users

to make content generally available on the In-

ternet. In this case, the general public with ac-

cess to the Internet is the target audience.



a social networking site, such as Facebook, al-

lows individual users to post various types of

works, such as texts, photographs and videos.

In this case, the target audience is not the gene-



having access to the personal webpages of the

individual user providing content.



a digital locker service allowing individual users

to upload personal copies of protected works to

personal cloud storage space for later downloa-

ding or streaming on multiple devices, or a pri-

vate video recorder allowing users to obtain re-

cordings of TV programmes for the purpose of

watching them at a more convenient time. In



individual user.

B. Interests Involved

3

On the basis of this outline of relevant storage servi-

ces, the different stakeholders involved can be iden-

-

dividual users. If cloud-based services are used to

disseminate protected works without prior authori-

zation, copyright owners may want to invoke their

exclusive rights to prohibit the use or claim an ap-

propriate reward.3 They will point out that without



for new creativity, on-going investment in cultural

productions and an adequate income from creative

work cannot be ensured.4

4

Platform providers, however, will argue that a gene-

ral obligation to monitor the data streams genera-

ted by users is too heavy a burden, and that instead,

the risk of platforms being held liable for copyright

infringement must be minimized. Otherwise, expo-

sure to that risk would force them to close down

their websites. The vibrant Internet as we know it

today would cease to exist.5

5

    

based services are not unlikely to emphasize that

their interests go far beyond mere convenience and

entertainment. Online platforms for publishing pho-

tographs and videos afford them the opportunity to

get actively involved in the creation of online con-

tent. Enhanced user participation strengthens the

role of the Internet as a democratic medium that

offers room for a wide variety of opinions and con-

tributions.6 Social media offer new forms of self-ex-

pression and social interaction. Private video recor-

ders can be seen as a service facilitating access to TV

streams and, therefore, as a means of supporting the

receipt of information.7

6 The protection of copyright is thus to be reconciled

with several competing interests. Against this back-

ground, policy makers are not unlikely to weigh the

rationales of copyright protection against other va-

lues, such as freedom of expression and informa-

tion, the interest in maintaining an open Internet,

the freedom to conduct a business and a participa-

tory Internet culture. Moreover, it must not be over-

looked that at the policy level, economic considera-

tions may play a crucial role. As a medium that keeps

generating new business models, the Internet still

offers a remarkable potential for economic growth.8

Breathing space for the development of cloud-based

services, therefore, can be part of a country’s inno-

vation policies.9

C. Survey of Flexibility Tools

7

Given the diversity of interests involved, it is not

surprising that different strategies have emerged

to regulate the impact of copyright protection on

cloud-based services. A survey of available regula-

tory instruments leads to a matrix of copyright li-

mitations, safe harbours for hosting, and injunctions

against online platforms. Copyright limitations can

be adopted to exempt certain forms of generating

online content from the control of the copyright ow-

ner (subsection C I). Safe harbours for hosting servi-

ces can be introduced to shield platform providers

against the risk of secondary liability for infringing

content made available by users (subsection C II). In-

junctions against platforms providers (subsection C

III) can be granted to allow copyright owners to take

action against infringers.

I. Copyright Limitations

8

  

services that offer individual users the opportunity

of storing copyrighted material on an online plat-

form. Depending on the involvement of the user in

the creation of the content, and the target audience

that is reached, different limitations of copyright

can become relevant in this context. Breathing space

may result from inherent limits of exclusive rights,

such as limits set to the right of adaptation in nati-

onal law. It may also result from the adoption of ex-

ceptions that exempt certain forms of use from the

control of the copyright owner. To provide an over-