Does copyright law spell trouble for the cloud?

A recent report from the Australian Law Reform Commission (ALRC) has questioned whether current copyright legislation in the country is stunting the growth of cloud computing.

The ALRC particularly mused whether any modifications to the current law should contain exemptions for cloud services or not.

Kim Weatherall, legal academic, was cited in the report stating a belief that technology-specific exemptions could impede cloud services further.

The report, entitled “Copyright and the Digital Economy”, noted a case in Australia involving the Optus TV Now service, which – if the appeal does not go Optus’ way – will have to be suspended following appeals from the AFL (Australian Football League), the NRL (National Rugby League) and Australian mobile device provider Telstra.

A Federal Court decision ruled that Optus’ online television service was not protected by an exemption in the Copyright Act, leaving the mobile comms providers seemingly open to legal action from all sides.

The ALRC report noted this case in that it “highlights the potential for new and emerging cloud computing services to infringe copyright, or enable their customers to infringe copyright”.

The research continues by discussing the hypothetical example of cloud providers who may infringe copyright by reproducing copyrighted material originally uploaded by customers, citing the example of ISPs infringing copyright by indexing and caching internet content as a potential precedent.

According to the report, “the making of temporary reproductions”, whether as part of communication or using a copy of the material, is a spurious matter and one which cannot in all certainty be covered by the current exceptions in the Copyright Act.

“Cloud computing represents a major development in the digital environment,” the report evinces, so evidently ensuring this is dealt with efficiently and properly is a matter of some import.

Professor Jill McKeough, ALRC commissioner, agrees, speaking of “whether current copyright laws are properly aiding opportunities for Australian creators and not unduly hindering the development of new business models while at the same time ensuring appropriate protection for copyright”.

The ‘development of new business models’ and the ‘major development in the digital environment’ appears to be synonymous in this instance.

This report is by no means the finished article, however; indeed, the ALRC is welcoming suggestions on whether Australian law is impeding cloud computing services.

But can this Australia-based report be a trend attributed worldwide? Is this an unfair indictment of the copyright laws, or is this similar to the patent law problems currently being played out by Apple and Samsung in their ongoing legal battle?

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