A I P P I 2012 SEOUL. Lee & Ko. Kwang Bae Park. October 22, 2012 CONTACT. kbp@leeko.com. COPYRIGHT LAW ISSUES RELATING to CLOUD COMPUTING

Transcription

1 A I P P I 2012 SEOUL Lee & Ko Kwang Bae Park October 22, 2012 CONTACT kbp@leeko.com 0

2 CONTENTS I Ⅱ Ⅲ Ⅳ Meaning of Cloud Computing Copyright Law Perspectives re. Internet-based Services So Far Timeshifting [RS - DVR Service] Placeshifting [Streaming Service] P2P Service Copyright Law Issues That May Arise from Cloud Environment Distinguishing the owner of copyrighted materials from the user of its value Reduced applicability of the rules of copyright exhaustion Liabilities for providing services in a streaming manner provided after one original digital work is created Issues re. limitation of OSP s liabilities Conclusion 1

3 I MEANING of CLOUD COMPUTING 2

4 MEANING of CLOUD COMPUTING Cloud Computing Definition by NIST (U.S. National Institute of Standards and Technology) Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model promotes availability and is composed of five essential characteristics, three service models, and four deployment models." 3

5 MEANING of CLOUD COMPUTING Definition by NIST (U.S. National Institute of Standards and Technology) Five Essential Characteristics of Cloud Computing 1 On-demand self service 2 Broad network access 3 Resource pooling 4 Rapid elasticity 5 Measured service 4

6 MEANING of CLOUD COMPUTING Definition by NIST (U.S. National Institute of Standards and Technology) Three Service Models Four Deployment Models 1 SaaS 2 PaaS 3 IaaS 1 Private Cloud, 2 Community Cloud, 3 Public Cloud, 4 Hybrid Cloud 5

7 MEANING of CLOUD COMPUTING Definition under the Cloud Computing Development and User Protection Bill of Korea Cloud Computing means computing that maximizes the efficiency of using information and communications resources, by elastically providing on demand through information and communications networks, such resources (e.g., information and communications equipment/facilities, software) integrated/shared through logical partition or combination. (Article 2.1 of the bill) 6

8 COPYRIGHT LAW PERSPECTIVE RE. INTERNET-BASED SERVICES SO FAR 7

9 1. RS DVR SERVICE [U.S. : Cablevision Case] RS DVR Service : Remote Storage - Digital Video Recording Service Structure of Service System Contents Suppliers Cablevision System Source: Sook Yeon LEE, Research of Disputes on Copyright and Neighboring Rights relating to New Forms of Services concerning Broadcasting Programs, Yonsei Medical-Scientific Technology and Law, Vol. 2 No. 2, Yonsei Univ. Law School, August p

10 1. RS DVR SERVICE [U.S. : Cablevision Case] Service Overview User requests recording of selected programs prior to or while broadcasting, Cablevision records and stores the programs in the server area allotted to the user. At the user s request for transmission, recorded data are streamed to the user. Summary of Judgment A trial court recognized D s liabilities for direct copyright infringement. An appellate court negated the liabilities. The supreme court disallowed an appeal against the decision. 9

11 1. RS DVR SERVICE [U.S. : Cablevision Case] Direct Copyright Infringement - The Only Issue Trial court: recognized legal liabilities (1) Whether temporary storage of data (e.g., buffer storage) constitutes copyright infringement: Direct infringement of reproduction right (2) Subject of reproduction in hard disc within a central server: defendant ( D ) service provider (3) By transmitting data from server hard disc to subscribers, it directly infringed the plaintiff s public performance rights. Appellate court: negated legal liabilities (1) Temporary storage of data (e.g., buffer storage) does not constitute reproduction. * Elements of reproduction: (a) for a period of more than transitory duration (duration requirement) (2) embodied in a medium (embodiment requirement) (2) Storage in hard disc within a central server cannot be regarded as reproduction by D. (3) Transmission of video for playback does not constitute public performance. Supreme court: disallowed an appeal 10

12 1. RS DVR SERVICE [Japan : Maneki TV Case] Structure of Service System Base Station Antenna Booster Internet Source: Byeong Il KIM, Copyright Law Issues of Internet-based Transmission Services, IT Law Review, Vol. 15, No. 3, IT Law Research Association, February 2012,. p. 7 11

13 1. RS DVR SERVICE [Japan : Maneki TV Case] Service Overview Sony s Location Free product enabling users to view at a remote place terrestrial wave TV programs (broadcasted where a base station equipment is installed), without recording, but through (i) real-time conversion to digital data and (ii) transmission via Internet to PC in which its exclusive program is installed, Maneki TV Service is to manage within its business places the base station equipment for the Location Free product purchased by the user. Summary of Judgment Trial and appellate courts: The program transmitter through Maneki TV is an individual user. Supreme Court of Japan: The program transmitter through Maneki TV is the defendant service provider, that directly infringed the right to enabling transmission and public transmission. - The subject of automatic public transmission ( APT ) is a person that devise the condition that enables an APT equipment to transmit data automatically. - Even if service users own APT equipment (e.g. base station) and request program recording, it is the defendant that is engaged in inputting the program in the equipment. - Thus, the defendant is the subject who enables transmission through APT equipment and actually transmits the TV programs. 12

14 1. RS DVR SERVICE [Korea : Ental Case] Structure of Service System Defendant s System KBS MBC TV signal receiver Server Internet SBS EBS Converter Consisting of 30+ PCs and 30+ software Source: Sook Yeon LEE, Research of Disputes on Copyright and Neighboring Rights relating to New Forms of Services concerning Broadcasting Programs, Yonsei Medical-Scientific Technology and Law, Vol. 2 No. 2, Yonsei Univ. Law School, August p

15 1. RS DVR SERVICE [Korea : Ental Case] Service Overview On the defendant s website, users make online reservation for recording of terrestrial TV programs to be broadcasted pursuant to TV broadcasting schedules. Defendant records so reserved programs, using about 30 PCs and many software, and stores the programs in AVI files as encoded by DivX codec in its servers (as classified by user) for 10 days. Users may download such stored files to their PCs at any time within the 10-day period. Summary of Judgment Trial and Appellate Courts: recognized the defendant service provider s direct liability for copyright infringement. Supreme Court: dismissed the case for lack of cause of action. 14

16 1. RS DVR SERVICE [Korea : Ental Case] Defendant s arguments 1) Defendant merely leases the recording system to its service users with charge, and 2) it is each user who actually records and uses specific programs broadcasted by the plaintiff. Thus, the defendant is not the subject who reproduces the programs, but its service users are the subjects. However, as it is for private use, their reproduction is lawful, and the service of the defendant involved in users private reproduction activities is nothing more than aiding and abetting of users lawful private reproduction. 15

17 1. RS DVR SERVICE [Korea : Ental Case] Court s Finding 1 The defendant ( D ) service provider is the subject of reproduction of TV programs within the servers of the Ental recording system. In that 1 D procured and constructed the entire Ental recording system (consisting of 30 PCs and about 30 software, including servers), 2 users had to access D s website and pursuant to D s explanation and instructions make reservations for recording, and (also for viewing of the recorded programs) they had to access D s website for the transmission of recorded programs from servers under D s control, 3 reproduction takes place at least twice within the recording system concerned, and 4 without users separate consent, recorded programs are removed from the servers upon the expiry of 10 days, 16 16

18 D is found to have contemplated the overall reproduction activities regarding plaintiff s TV programs and to have had the overall control over and managed reproduction activities of each such program. Accordingly, D is the subject of such reproduction activities concerned. Therefore, D is liable for direct infringement of the plaintiff s reproduction right as a copyright or a neighboring right under the Copyright Act of Korea. 17

19 1. RS DVR SERVICE [Korea : Ental Case] Court s Finding 2 Even assuming users are the subjects of reproduction activities, their reproduction cannot be regarded to be for private use. Even assuming users are the subjects, their reproduction cannot be regarded as being for private use, in that 1 they were often engaged in unlawful uses, e.g., by uploading compressed digital files of downloaded TV programs on Internet or P2P sites, whereby allowing many unspecified persons to infringe the plaintiff s copyrights or other proprietary rights and causing infringement to expand, 2 anyone may subscribe to the membership of the defendant s website and, upon payment of certain fees, record TV programs (for which defendant provides recording services), 18 18

20 3 protection of plaintiff s copyrights is highly required since some dramas, documentaries, etc. out of programs broadcasted by the plaintiff, are highly creative and substantial costs and time were invested for their production, 4 the development of digital technology make no big difference existing between watching a TV program on a terrestrial wave TV or playback from a compressed digital file of it, in terms of visual or sound effects, and also narrows the gap, and 5 obviously plaintiff s turnover will substantially decrease if, by use of the recording system concerned, users receive compressed digital files and at any time playback, reproduce and distribute the TV programs. 19

21 1. RS DVR SERVICE [Korea : Ental Case] Court s Finding 3 Defendant is liable for the direct infringement of public transmission right. The issue of whether a same copyrighted work was transmitted to the public will be determined based on the original copyrighted work ( Work ). Thus, if more than one reproduction of a specific Work are made and provided to each users, it would constitute transmission of the Work to the public. Accordingly the defendant is liable for infringement of public transmission right (e.g., interactive transmission right) as a copyright under the Copyright Act of Korea. 20

22 1. RS DVR SERVICE [other countries] Wizzgo case (France) : First online digital DVR platform Allowed users to view recorded copies of programs broadcast on domestic terrestrial television channels as long as they requested that the show be recorded before the programs started. Once recording is completed, the user downloaded a copy on his computer, he could then view it on different screens (i.e., computer, TV, mobile devices). Ruling: Wizzgo can not validly rely on the exceptions to French copyright law: transient and private copying, -- levied a fine on Wizzgo -- the Company and similar companies discontinued its service. (2008) 21

23 1. RS DVR SERVICE [other countries] Shift.tv & Save.tv cases (German) : online video recording platforms Allowed users to select and store television content on servers from which users can download and stream stored programs. Receipt of TV signals through satellite reception station; and transform and store these signals in user-dedicated server space. Fed. Ct. ruling: If the copying was not automatic, they would be liable for direct infringement of reproduction rights. Even if the copying was fully automatic, they could be liable for infringement of the plaintiffs retransmission rights to the public, which are harmed by retransmitting broadcasting signals simultaneously to a large number of customers. (2009) Without the broadcasters prior permission, business model of Internet-based video recording cannot be operated legally. 22

24 1. RS DVR SERVICE [other countries] Optus TV Now case (Austrailia) : cloud based personal video recorder (PVR) platform Optus launched the Service in July The Service allows Optus mobile customers to access an electronic guide of upcoming free-to-air TV programs. Customers can then record programs to a cloud based personal video recorder (PVR) and view these at a later time on the customer s mobile (iphones and Android products) or PCs. The Full Fed. Ct ruling: both Optus and the subscriber were jointly responsible, or in the alternative Optus was responsible, for making the recordings of the NRL and AFL broadcasts on the Optus TV Now cloud based personal video recorder, and Optus could not rely on the private and domestic recording exception in s111 of the Copyright Act to avoid copyright infringement (2012) Australian Law Reform Commission's (ALRC's) review of the copyright law 23

25 Some questions What if cloud service users copy legally obtained copyright materials and allow sharing of it to his/her family/friends through SNS, etc. would the cloud service provider be liable for reproduction right/public performance right/public transmission right? Can cloud service provider prohibit /control the cloud service users from doing so? 24

26 Some questions What if cloud service providers back up the contents of copyrighted materials stored by the cloud users to various servers? Is this infringement of reproduction right of copyright holders? 25

27 2. STREAMING SERVICE (1) Infringement of Reproduction Right Reproduction = fixing on a tangible object or remaking into a tangible object by means of printing, photographing, copying, sound or visual recording or other means (the Copyright Act of Korea). A. Reproduction of installation image encoded in a service provider s server : may be interpreted beyond the license granted under a license contract, thus causing a reproduction right infringement issue. B. Temporary reproduction within user s PC during content use in a streaming manner : Under Article 2.22 of the Copyright Act of Korea as amended pursuant to KOR-US FTA (effective from March 15, 2012), temporary reproduction also constitutes reproduction. Reproduction means temporarily or permanently fixing on a tangible object or remaking into a tangible object by means of printing, photographing, copying, sound or visual recording or other means

28 2. STREAMING SERVICE C. Cache file remaining in user s PC : Some view, in the case of a cache file remaining in user s PC, it is difficult to find infringement of reproduction right, as a cache file cannot be regarded as reproduction of part worth protecting as a copyrighted work (that is an essential part of the original Work), (2) Infringement of Public Transmission Right An issue of infringement of public transmission right may arise, because programs (from encoded installations) are provided to many specified service users for receipt or access through communications. Public transmission : means transmitting works, stage performances, music records, broadcasting or database by means of radio communication or wire communication so that the public may receive them or have access to them Public : means many unspecified persons (including many specified persons). 27

29 What if SaaS provider illegally use software of others, Would users of SaaS be liable to the copyright holder of the software? What if users continue to use even after notice from copyright holder? Could the concept of license be same as that of use? 28

30 3. P2P SERVICE [I-Meps Case] Service Overview Files uploaded by users - were not stored in a central servers, but - the P2P sharing services concerned enabled - other users to search and listen to the music in a streaming manner (but no downloading was allowed). Summary of Judgment Seoul Central District Court decision of May 30, 2005 (no. 2004KAHAP3956): Liable for aiding and abetting individual user s infringement of reproduction and interactive transmission rights 29

31 Copyright Law Issues That May Arise in Clouding Environment 30

32 in CLOUD ENVIRONMENT Distinguishing the owner of copyrighted materials from the user of its value Reduced applicability of the rules of copyright exhaustion - The existing rules of copyright exhaustion made the copyright holder no longer be able to argue for a certain exclusive right to a specific copyrighted tangible object offered for a transaction. - In cloud computing environment, however, issues will mostly arise from digital copyrighted works (less likely to be recognized as a tangible object ). It is highly likely that users asserting copyright exhaustion will not be recognized as the owner of a copyrighted tangible object. This will reduce the scope of application of the rules. 31

33 in CLOUD ENVIRONMENT Liabilities for providing services in a streaming manner provided after one original digital work is created - In cloud computing, after one digital original is created, many users will increasingly use its reproduction in a streaming manner or otherwise. - In the U.S. Cablevision case, one of the critical standards was whether, when provided in a streaming manner, the reproduction is one for each user or one and the same reproduction is provided to all users. Finding that one copy per user was created, the court negated alleged infringement of public performance right (that is, public transmission right under the Copyright Act of Korea). - In light of the US precedent, it is highly likely that the service provider will be liable for copyright infringement if it provides/allows streaming of a digital content to others once a digital original content is created. - For the vitalization of cloud computing (a way to achieve innovative network efficiency), it is necessary to add a new form of fair use to the copyright law, or to discuss the necessity of negating the liability for infringement when construing the law. 32

34 in CLOUD ENVIRONMENT Issues re. limitation of OSP s liabilities - A cloud computing service provider also falls under general online service provider under the Copyright Act of Korea. - Thus, where there is an issue of aiding and abetting individual service user s infringement of copyright, if it satisfies certain requirement for the exemption of liabilities applicable depending on the type of the service provided, it may be exempt from the liabilities. - However, if it is technically impossible to take measures prescribed by Article 102.1, the service provider will not be liable for any infringement of copyright or other right protected by the law due to the user s reproduction/transmission of copyrighted works, etc. ( Works ) 33

35 in CLOUD ENVIRONMENT Issues re. limitation of OSP s liabilities - Immediately upon the request for suspension of reproduction/transmission ( R/T ) from the alleged right holder of infringement, the OSP must suspend the R/T and notify the alleged right owner, etc. of the relevant facts. - If the reproducer/transmitter explains in detail that his R/T is lawful and requests for resumption of R/T, the OSP must notify the same to the alleged right owner, etc. and resume the R/T. - If the OSP so notifies and suspends/resumes R/T pursuant to the law, its liabilities for the infringement of any right protected by the law will be exempt. - However, such exemption of liability will not apply to liabilities arising from when the OSP becomes aware of the infringement caused by R/T of the Works until its receipt of a suspension request. 34

36 in CLOUD ENVIRONMENT Issues re. limitation of OSP s liabilities - If any service provided by the OSP includes any service that (i) provides commercial benefits or convenience of use to an uploader of Work so as for the public to use them, (ii) provides functions for the public to download Works stored in users PCs, etc., and for downloaders to pay therefor, (iii) provides functions of uploading or downloading Works stored in users PCs, etc., based on P2P technology, and gains commercial benefits, or (iv) is primarily purported to provide programs to search for and transmit Works stored in users PCs, etc., then the OSP will constitute OSP of special type under the Copyright Act of Korea. It must take necessary measures, including technical measures to block illegal transmission of the Works concerned at the request of the right owner. 35

37 A I P P I 2012 SEOUL 36

38 A I P P I 2012 SEOUL Thank you CONTACT US Hanjin Main Building, 18th Floor, 118, Namdaemunno 2-Ga, Seoul , Korea Tel: Fax: /2 mail@leeko.com 37