Copyright could cramp cloud computing

The Australian Law Reform Commission (ALRC) has highlighted cloud computing as a potential avenue for investigation as part of a broader inquiry into copyright reform.

An issues paper released this week by the commission asked interested parties to answer questions on whether current copyright legislation impeded the development of cloud computing services, and whether any changes to law should be neutral to technology, or contain specific exemptions for cloud services.

None of these issues are explicit terms of reference for the inquiry.

The commission specifically referred in the issues paper to Optus' recent court battles with the AFL, NRL and Telstra over its cloud-based digital video recording service, TV Now, as an example of where cloud computing services may be used to infringe copyright.

Though Optus is seeking a High Court appeal, the recent Convergence Review positioned the case as highlighting "the potential for new and emerging cloud computing services to infringe copyright, or enable their customers to infringe copyright".

"A technology-neutral approach to copyright policy might suggest that whatever users may do using technology in their own home, they should be able to do using technology stored remotely," the ALRC also wrote in its paper.

"However, such a technology-neutral policy applied to private copying may prevent rights holders from obtaining remuneration for certain uses of their copyright material."

The paper cited law academic Kim Weatherall suggesting that technology-specific exemptions for existing copyright law could hold back future developments in cloud services.

The paper indicated opposition to the use of cloud-based storage services for storing material illegally obtain by the user, but said any investigation regarding the inclusion of cloud service providers under safe harbour schemes was "beyond the terms of reference" of the inquiry.

Data mining

The ALRC also sought further information on orphan works, data and text mining and whether there should be a crackdown on using contracts to avoid current copyright exceptions, as part of its copyright review.

It highlighted the possibility of automated analysis of data gleaned from social networks and other digitial sources as potentially breaching current copyright legislation, noting it was "an increasingly important feature of the digital economy".

However, the paper noted no specific exception in the Copyright Act for data mining.

"No jurisdiction appears to have an existing exception specifically dealing with data mining," it said.

"However, any new broad flexible exception based on a concept of 'fair' or 'reasonable' use may also be expected to cover some data mining processes."

It pointed to recent moves to introduce such exceptions in the UK as an example of ongoing thought about the issue, including the introduction of "appropriate licensing models" for researchers.

The paper indicated potentially drawing a difference between data mining by commercial and non-commercial entities — such as researchers and scientists — as one means of reforming legislation to allow such analysis without contravening copyright.