Cloud Computing specialized commission. Report summary

Transcription

1 High Council for Literary and Artistic Property Cloud Computing specialized commission Report summary The High Council for Literary and Artistic Property is an independent advisory board, in charge of advising the Minister of Culture and Communication on matters concerning literary and artistic property. It is also an observatory, making sure that author s rights and related rights are exercised and enforced. For this dual purpose, the Council can get involved in any matter relating to literary and artistic property and to its technological, economic and legal context. In 2012, the CSPLA appointed a specialized commission to study the issues and consequences of cloud computing for the cultural sector. The commission reported to the Minister of Culture and Communication on 23rd October 2012, in person and in writing, as summarised here. This report is based on the existing situation of cloud computing at that date. 1

2 1. General framework and scope of the report Cloud computing describes a set of techniques and practices that consists of accessing material or computer software from a service provider over the Internet. New cloud computing services thereby allow individuals to rent storage space and/or software to remotely keep works and subject matter protected by author s rights and related rights in addition to permitting consultation and reproduction of these works and subject matters using a wide range of devices. Cloud computing is not based on emerging new technologies but rather on the development and articulation of existing technologies involving file storage and «intelligent» access. It is therefore less of a revolution than an evolution. Nevertheless, this evolution can be seen as a significant change in the paradigm for distributing cultural content : going from a possession system (in which the user purchases content on a support) to a system involving rental or access to virtual supports and contents. The commission surveyed the existing or soon-to-be released cloud computing commercial offers intended for individuals and likely to affect literary and artistic property. It identified and studied three major service categories in this set, bound to evolve quickly : 1) Services known as "personal locker" intended to store contents that have already been held by the user and access to this content and its reproduction on a wide range of devices (e.g. Dropbox, OVH) ; 2) Services involved in a legal downloading service, allowing the user, once the content has been acquired on the download platform, to play it, separately or simultaneously, on a wide variety of devices. They might be described as synchronisation services associated with a sales service (e.g. itunes in the Cloud, Google play) ; 3) Scan and match services allowing consumers that already have a copy of a copyrighted work, on the one hand to access to a replacement file (which is generally a better quality version than the file held and is accompanied by complete metadata) made available by the service provider and, on the other hand, to be able to make copies of this match on a wide variety of devices (e.g. itunes Match). 2. Approach and reminders of the applicable legal framework The commission analysed each of these categories in an attempt to legally classify the services on offer. Economic rights defined by French literary and artistic property law, within a broader European and international legal framework, are characterised by a balance between the domain of author s rights and related rights on the one hand and the domain of exceptions to these rights on the other, guaranteeing users a certain freedom of content use, in return for fair economic compensation for copyright holders. 2

3 The author s economic rights, frequently designated using the term «exclusive right», include : - a right of performance, covering any communication to the public of the work. - a right of reproduction that concerns "any material fixing of the work by all processes allowing it to be communicated to the public indirectly". As for the exceptions, the intellectual property code nevertheless envisages that copyright holders cannot prohibit : - private performances free of charge, carried out exclusively within a family circle; - copies or reproductions strictly reserved for the copier's private use. The commission then began to wonder about which uses of the works in the cloud should be included in the exclusive right and which should be exempted from exclusive right. This sharing brings about not only legal but economic consequences, because the methods for valorising a work commercially are different depending on whether it falls within one domain or the other. 3. On the legal classification of synchronisation services associated with a sales service The commission looked into the legal status of reproduction permitted by certain functional features offered by this type of service, namely : - the instant synchronisation functional feature: thanks to this functional feature, a consumer who buys content online can obtain a copy of this content on several connected terminals, without having to actually synchronise these terminals. In the case of itunes in the cloud, the user can thereby automatically and simultaneously load a piece of music on 10 terminals, including 5 computers, by "authorising" these terminals. - the offset synchronisation functional feature : this function lets users have a purchasing history in the cloud. In practice, this allows them to download a work first of all during purchase and then re-download it from the history. So a file that is erased from a terminal is never definitively lost because a copy remains available in the user's space in the cloud. The commission is divided over the legal classification to be used for copies made thanks to the cloud. For some of its members, it is clear that these services can be governed by the exclusive right : actually, the aforementioned functional copying features are offered by the service providers with which the content copyright holders can create contracts, framing the uses of this content and consequently defining an economic balance. For these members, the very possibility of exercising the exclusive right has led to intellectually excluding the application of exceptions to author s rights. However, an observation was quickly made : synchronisation functional features offered by the cloud computer services have identical effects (content reproduction), at least from the user s point of view, to existing synchronisation methods (prosaically, synchronisation 3

4 between devices is generally done by linking them up with a cable). And yet copies made using these synchronisation methods had always been considered as part of the private copy exception. In the light of this observation, the commission members agreed to consider that the initial download act doubtlessly came within the competence of the exclusive right, but they were once again divided regarding the legal regime applicable to subsequent copies. Some members thought that it was appropriate to tie synchronisation to the exclusive right to the extent that these acts are carried out, on the user's demand, by a commercial service provider, implementing the right of performance and the right of reproduction. These members thought that these service providers should receive, for this purpose, authorisation from the entitled parties (corresponding to the practice). They also insisted on the established case-law of the "Cour de cassation" that, since its "Rannou-Graphie" ruling dated 7th March 1984, subordinates the application of the private copy regime to the condition on that the person making the copy must be the beneficiary of the copy made. The circumstances that the service provider holds the copy material would therefore tend to rule out the qualification of private copy. The other members thought, on the other hand, that the identity of effects made between the cabled-related synchronisation methods and synchronisation using the cloud should prevail. These members highlighted the principle known as «technological neutrality» according to which the law should state the rights and obligations of persons generically in order not to prioritise using one technology to the detriment of another : for equivalent use, the legal status should be equivalent. These members have ruled out the need for contractual authorisation of releasing extra copies of works on the cloud, private copies coming within the competence of a legal authorisation regime. These members therefore recommended applying the benefit of the private copy exception to multiple reproductions made using cloud computing functional features. However, they recalled this application is subordinate to the legality of the copy's source, the strictly personal use of the copy and the requirement of the test known as "three-step-test", instituted by the Bern Convention and recalled in the EUCD directive dated 22nd May 2001 and the intellectual property code that save exceptions for special cases, not affecting normal use of the works and not causing any unjustified harm to the legitimate interests of the author and the holders of related rights. Furthermore, it has been envisaged that the exclusive right and private copy regimes can be combined in the specific case of cloud synchronisation services. These services actually lead to producing at least two different copies of a work : one produced in the operator's database for the service's operating needs, and that normally falls within the competence of exercising the exclusive right, and any produced on the user's terminal(s), that can fall within the private copy regime. The «Padawan vs. SGAE» judgment issued on 21st October 2010 by the European Union Court of Justice was written in such a way that, according to some commentators, complies with this logic. In this judgment, the Court actually highlights that «the activity of the persons liable to finance the fair compensation, namely the making available to private users of reproduction equipment, devices and media, or their supply of copying services, is the factual precondition for natural persons to obtain private copies». In this perspective, the 4

5 lack of identity between copier and beneficiary of the copy should no longer be an obstacle to applying the private copy regime, any more than the commercial nature of the actual reproduction. Independently of the resources used to carry it out, a copy would therefore have the status of private copy when it is entrusted to a user previously in possession of a copy of the work and when the use made of this copy remains strictly private. 4. On the legal classification of personal locker services Operations implemented by personal locker services are similar to any seen in the aforementioned synchronisation services : storage, access and release of reproductions by the service provider, on the user's request (the difference lies in that the service is not supported by the sale of the content). The aforementioned reflections are therefore to be applied to personal locker services, unless they do not envisage file sharing functional features. The pure space rental services nevertheless present the legal specificity, compared to synchronisation services supported by a sale, of raising the question of the service providers' status and, more precisely, the possibility of them claiming the special liability regime for hosting providers. The hosting provider, defined as an operator who has neither knowledge nor control over the information sent or stored on the space that he makes available, and whose activity is purely technical, automatic and passive, actually benefits from a special civil and penal liability regime in terms of illicit use of the contents that he hosts. The possibility for cloud computing service providers to claim this status would otherwise make the exclusive law inapplicable to them as the hosting provider is not supposed to know about or control the contents that he stores. Two limits could however be opposed to these service providers' claim to the hosting provider status. On the one hand, the French digital economy trust law that governs this status reserves it for physical and moral persons assuring that the content «is made available to the public». And yet, it is doubtful that a service releasing copies to a single user, holder of the original file, could be regarded as a public communication service. On the other hand, some commentators believe that applying the hosting provider status is closely linked to the possibility for anyone entitled to bring to the knowledge of the service provider the existence of illicit users of the contents that he hosts. This condition, intrinsically linked to the former, will only be fulfilled whenever third parties do not have access to the contents stored by users in their digital mailboxes. However, there would be a paradox in recognising the hosting provider status for service providers that operate more sophisticated services, where contents are made available to the public, and not when these contents are only made available to a single person for her private use (a higher degree of service provider intervention should rather, in the spirit of the law, take them further away from the hosting provider status). The commission was therefore not able to reach a consensus on the matter. 5

6 5. On the legal classification of equivalent identification and research services This last category of services presents hybrid functional features. In principle, this kind of service actually distinguishes between the files that have been identified by the service provider and matched with equivalent files in their own base of works on the one hand and non matched files on the other. In the former case, the service provider provides the user with an equivalent file. To this extent, it might be considered that there is still an identity of effects with cabled-based synchronisation. However, there is a major difference between this type of service and synchronisation with the cloud as described previously: there is no guarantee of absolute identity between the file held by the user and the equivalent file made available. On the contrary, the interest in this type of service is strengthened by the possibility for the user of obtaining equivalents in better quality formats or accompanied by elements that enrich the contents (complete metadata, etc.). The equivalent file provided by the service provider is therefore not, as a general rule, a private copy as it is not a 'clone' of the matched file. In the latter case, the file that has not been identified or for which the service provider cannot provide an equivalent, is destined to be downloaded in a personal space in the cloud, from which it could be copied to feed different user terminals. We are then closer to pure storage functional features as there is a guarantee concerning the file identity. The commission could not reach a consensus on the application of this type of hosting provider regime service to the service provider. The identification process, after which the file is downloaded in the user's computer cloud space, actually implies intervention from the service provider who examines the file's data and metadata. In addition to reservations already raised about the availability criterion, there is also therefore a new concern from the fact that the service provider does not remain passive, even if we cannot presume that this service provider knows about the works that he has justly not been able to recognise. Whatever the circumstances, the commission members unanimously regret the absence of a technical device that might prevent an illicit source file from being identified and matched for the purposes of replacing it with a "clean" file. More precision is required on this absence of guarantee for the matched file's legality: a consensus was found within the commission to consider that the initial fraud consisting of using the service with illicit files affects all the subsequent operations. The equivalent files that the fraudulent operator would download from the cloud could thereby be regarded as legally acquired files. 6