ARTICLE: The legal implications of using cloud technology; what happens when two or more people create and collaborate an ‘original work’ solely on the cloud?
by Lucilla Green (a Law graduate who is currently working as an Independent Legal Advisor,firstname.lastname@example.org)
What is Cloud Technology?
Cloud Technology is made up of applications and storage space which are solely web-based and not stored on the computers hard-drive. Instead, everything is stored online. It allows consumers to create data and store it away on the service providers’ hard-drive where it can be accessed anywhere at anytime from any computer or mobile phone with an Internet connection. I think its a fantastic piece of technology and facilitates the way that we do work as it allows multiple users to work on one document at the same time without the need to be in the same room together, or the same country. I myself am an avid fan of Cloud Technology and use Google Docs more than Microsoft Word to do all my work as I no longer need to carry sheets of paper, USB sticks, or even email myself work, I can just save it and access it from any computer at anytime. In fact, I am using Cloud Technology to create this article right now!
Creating and collaborating on an ‘original work’ on the ‘cloud’
There are lots of articles about Cloud Technology on the Internet, however, I wanted to consider a different angle. I decided to write an article focusing on collaborations on the cloud and the ownership of copyright as ‘original works’ are being created solely on the cloud by multiple creators. We are a generation of collaborators. More and more creators; writers, musicians, artists and film makers are deciding to collaborate their ‘works’ and ideas rather than going at it alone. Nowadays, as software and apps are being created for use solely on the cloud, instead of using the more traditional way of downloading it onto the computer or mobile phone memory, what happens when two or more people collaborate on and create an original work solely on the cloud? At the moment, multiple collaborators can use the cloud, for example ‘Google Docs’, to collaborate on a literary or an artistic work. Collaborators no longer have to be in the same room, not even the same country to create an ‘original work’ together. Instead, they can share a document and create the ‘original work’ together at exactly the same time. In the future, or maybe even now, as music software is created for the sole purpose of the cloud, more and more musicians and music producers will be able to collaborate on music and create original musical works together using the cloud without storing it onto their own individual hard-drives. Who will own the copyright? What agreements will need to be in place? Now, it seems obvious to assume that if two or more people create an original work together, surely they are all joint owners of said work, each owning an equal share in the copyright. That seems perfectly simple. However, life isn’t always that easy especially when different combinations of collaborating could occur on the cloud.
Different combinations of collaborating on an ‘original work’
The open-source article on software ‘Copyright in Open Source Software – Understanding the Boundaries by Omar Johnny, Marc Miller and Mark Webbink’ identifies the different situations in which people could collaborate on open source software and the implications for copyright ownership that would arise. It made me think about the cloud and applying the same underlying principles of copyright ownership. The article identified three important elements which need to be considered; ‘intent’, ‘timing’ and ‘creative expression’: Intent refers to the intention of the multiple collaborators as they choose to collaborate and share works. Timing refers to the time at which the collaborators show their intention; before the collaborating begins, after one of the collaborators has already written something or after the work has been developed. Creative expression refers to whether the work is original and eligible for copyright protection. All these elements will need to be considered when deciphering copyright ownership as agreements will need to be drafted to accommodate multiple collaborators who have created a work together on the cloud either sequentially or simultaneously.
After doing research I have identified some of the combinations which would occur when people collaborate on the cloud ; an individual creator develops a piece of work and after developing the work invites others to collaborate on it, multiple collaborators agree to jointly create a piece of work together before the work is created, joint creators of a piece of work who invite others to collaborate on it after the their initial collaboration on it, multiple collaborators agree to share their own separate individual works after creating them and combine them as one work. Of course, other combinations could occur, this is just an example of why the elements of ‘intent’, ‘timing’ and ‘creative expression’ are important when drafting ‘cloud agreements’ and need to be considered by creators who want to use cloud technology to create an ‘original work’ together in the future.
Applying the current ‘Law of Copyright’ to the ‘cloud’.
Copyright law vests in the author(s) of an ‘original work’. As soon as the author ‘fixes’ a ‘work’ in a ‘tangible medium of expression’ ie: types it and saves it onto a computer’s fixed memory (hard-drive), then it is afforded copyright protection. When someone creates an ‘original work’ on a cloud, even though it is not being stored on their computer’s fixed memory, it is being stored in a ‘data centre’ (a tangible medium), so it is afforded copyright protection.
Problems which will arise creating works on a ‘cloud’
The main problem which occurs when creating a work on the cloud is where is it stored physically? Where is the data centre that is storing your work? Most people do not know. The work could be stored in a data centre which is situated in another country to where you are. The ‘physical location’ of the data centre raises the question of what country has jurisdiction? If a dispute occurs, for example, copyright infringement, which country’s laws and court system would apply? The country where the work was actually written, or the country where the data centre is physically located? The same problem arises when there are multiple collaborators from different countries collaborating on the same work. Which country’s laws will govern that piece of work? Another problem which could arise is if multiple collaborators are collaborating at exactly the same time, and one person’s Internet Service Provider (ISP) is quicker than the other, even though they are typing and acquiring copyright in the work at exactly the same time, timing could become an issue. Breach of privacy is another factor which could arise with cloud collaborations, as are intellectual property rights. If multiple collaborators are contributing to the creation of an ‘original work’, but they are situated in different countries at the time the work is being created, which country’s Intellectual Property laws govern the rights attached to the work? Only time will tell and the courts will be the ultimate deciding factor on all of these issues.
Cloud Technology is the future and whether people like it or not it plays a part in all of our online lives. I hope this article raises some awareness of what we have to look forward to in terms of collaborating on the cloud and highlights some key copyright issues which could arise as new works are being created. Watch this space!
‘Copyright in Open Source Software – Understanding the Boundaries by Omar Johnny, Marc Miller, Mark Webbink’
Copyright, Designs and Patents Act 1988 HMSO
© 2011 Lucilla Green
More on clouds on the CMU website “Amazon locker not licensed – does that matter?”
Well, we’ve known for a while that some people are convinced music-based digital locker services don’t require licenses from record labels and music publishers, and it seems that you can add Amazon to that list. As previously reported, Amazon announced it was launching a music-focused locker service yesterday, enabling users to upload their MP3 collections to a central server and then stream them via a web-based player on various net connected devices (PC, Mac, Android phone) …. The big debate that hangs over this emerging market is whether or not such services need licenses from the content owners whose music will be stored in and played from the cloud. Copyright law is very vague on this issue … read more at http://www.thecmuwebsite.com/article/amazon-locker-not-licensed-does-that-matter/