[Questionnaire]

ALAI Congress Kyoto 2012
Questionnaire


Session 1
－Developments of New Platforms

1)How would you define “The Cloud” in your country?
2)Is exploitation of works, performances, sound recordings and so on generally considered to relate to the Cloud?
3)Are there already commercial platforms established specifically designated for the Cloud or to some extent related to Cloud uses? Can you foresee such new platforms to be established in the near future?
4)How would you evaluate the Cloud’s importance to copyright for the next few years to come?

Sessions 2 and 3
－ Can the Internet Treaties of 1996 play an important role in legal issues raised by “Cloud” Business?

1)Is there any case law to be found in your country and/or examples of (good) practices concerning:

1.1)the right of making available to the public with reference to “Cloud” storage, retrieval and dissemination?

1.2)cloud providers that may be relevant to determine liability for the making available of unauthorized content in the cloud environment?
2)Is there case law on the technological protection measures and Electronic rights management information in the “Cloud” environment?
3)How can we re-examine or re-evaluate the role of the WIPO Treaties with reference to “cloud” developments?

Session 4
– New Business Models for effective Protection of Copyright and Related rights in the “Cloud”: Role of electronic rights management in new business models

Note: In general, services offered on the basis of cloud computing technologies are classified as “Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service” (IaaS). Under the heading of “New Business Models for effective Protection of Copyright and Related rights in the ‘Cloud’”, the main focus is on PaaS, whereas both IaaS and SaaS are of minor importance, since they generally do not involve the use of copyrighted works of literature and the arts (issues of copyright in software are not discussed at this congress).

Note: This subsection focuses on successful business models of authors and rightholders who market their copyrighted subject matter in the cloud either themselves or via a service provider (such as, e.g. Apple’s “iTunes in the Cloud“), presumably by employing digital rights management (DRM) and perhaps also technical protection measures (TPM).

1)In your country, what types of cloud services are offered and/or made available by authors and rightholders offering their copyrighted content?
2)What kinds of works are being offered in this way (e.g., musical works, literary works, photographic works, audiovisual works, performances etc.)?
3)What rights do rightholders usually transfer to the providers of cloud services?
4)What uses of copyrighted material are the users of such cloud services permitted?
5)Can you give any figures regarding both royalty rates and total revenue authors and rightholders receive when their works are being offered in the cloud?
6)What kind of TPM and DRM is used by these services?
7)Under the legislation of your country, to what extent are TPM protected against their unauthorized circumvention?
8)Is unauthorized circumvention of TPM a practical problem for those offering their content in the cloud?

5 Copyright-avoiding business models

Note: This subsection focuses on business models of persons other than authors and rightholders, who build upon someone else’s copyrighted material and who – successfully or not – try not to be subject to copyright liability. Examples are services that make use of the private copying exception (such as, e.g., personalized internet video-recorders) or which strive to benefit from an exception to legal liability as an Internet Service Provider (such as, e.g., under the EU e-Commerce Directive). In addition, strategies of authors who market their copyrighted works outside of copyright (such as, e.g., under an open content or Creative Commons (CC) licence) can also be regarded as “copyright-avoiding” business models (although technically, they are based on copyright).

5.1 – Private copying in the Cloud

1)In your country, are there services – and if so, what kind of services are there - that offer its users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s “Picasa”), platforms with general public access (such as, e.g., FlickR) and mixed-forms (such as, e.g. Facebook) but also so-called internet-video recorders and possible other forms of private storage services.
2)In legal terms, to what extent do the operators of such services benefit from its user’s private copying exception? Are there any other exceptions under copyright law?
(note that general exceptions of legal liability are discussed under 5.2).

5.2 – Copyright-avoiding models on the basis of – presumed – exceptions to copyright liability or limited interpretations of the “making available” right

1)To what extent do the operators of cloud services benefit from a narrow interpretation of the making available (or communication to the public, or public performance) right?
2)According to the law in your country, what is the legal status (primary or secondary liability - contributory infringement or vicarious liability; aiding and abetting, other liability such as an inducer, “Störer”) of the provider of cloud services with regard to copyright infringing content uploaded by its users?
3)In your country, do cloud service providers benefit from an exception to liability (such as, e.g., under the EU e-Commerce Directive), and if so, to what extent (e.g., total exemption from liability or exemption only from duty to pay damages)?
Please cite to and briefly describe statutory provisions and relevant case law.
4)Also according to the law in your country, what duty of care is owed by cloud service providers to monitor and eventually remove copyright infringing content?
5)What evidence must a rightholder present in order to have infringing content removed?
6)In your country, are there any contracts that have been concluded between cloud service providers and rightholders concerning the use of copyrighted material by the users of the cloud services?
7)In your country, what copyright-avoiding cloud services are operating successfully, and what services that sought to be avoiding copyright have been banned and eventually shut down?
8)In your country, are there any legislative changes under discussion as regards the liability of service providers who provide for cloud services? In particular, do you think that liability of service providers will be reduced or, rather, increased?
9)Do you see any progress regarding filtering technology?

5.3 – “Copyright-avoiding” business models operated by authors for the “Cloud”

1)In your country, is there a noticeable use of “copyright-avoiding” business models, such as Creative Commons (CC) or comparable open content licenses by rightholders with respect to cloud-based exploitations of works?
2)If so, in what areas (music, literature, audiovisual works, scientific works etc.) are such licenses most often used?
3)Are there any figures available as to how the authors of such works generate income from such cloud-based exploitations, and how much?
4)Also in your country, what legal obstacles are authors faced with when making use of open content and CC-licenses?
Examples might be the unenforceability of such licences; the refusal to award damages for unauthorized commercial use of works that have been made available only for non-commercial use; collecting societies refusing to represent authors who want to market some of their works under a CC-licence; the exclusion of CC-authors from receiving remuneration under a private copying regime etc.

Session 6
－Future Model of One-Stop-On-Line Licensing in the Cloud Environment

1)Does your country have specific private international law rules for copyright in particular and for intellectual property in general or are there general rules of private international law that apply in these circumstances? In particular do your country's rules of judicial competence (personal jurisdiction) make it possible to sue a foreign intermediary who makes it possible for infringements to occur or to impact in the forum? Which law applies in such instances? Would the law applicable to the primary infringement apply? Would the law of the intermediary's residence or place of business apply?
2)Does your national collective rights management organisation grant multi-territorial licences and are there cloud-specific licence models when it comes to collective licensing? If so, does this include rules on cross-border contracts (including jurisdiction and choice of law aspects)?