All the hype surrounding Cloud computing, coupled with the mandatory cautionary tales around security and control, or the lack thereof, makes it is easy to overlook a small but significant component of the cloud proposition i.e.: Who owns what Intellectual Property in the Cloud?
If we take as an example, a simple cloud-based application or service, (i.e. one that is developed, hosted and operated in the Cloud), which enable users to create mash-ups of information and content derived from other cloud services and web applications, and which may be physically located in various other parts of the world (remember this is Cloud we’re talking about), who should be held responsible for any infringement of confidentiality or Intellectual Property such as: copyright, trade secrets, designs or patents, in such an environment?
The elephant-in-the-room answer to that question is how to go about establishing the correct chain or web of responsibility – Ergo:
- Is it the cloud service provider, (with their hermetically sealed and caveated contracts)?
- Is it the cloud-based service operator (again with their watertight EULAs)?
- is it, as often tends to be the case in these things, the hapless end-user / consumer who in effect has directly infringed someone’s IP by using that service in the first place (i.e. assuming they did not intend to infringe anything at all)?
- Or is it all of the above?
The above scenario clearly speaks to the heart of the matter with IP in the Cloud; i.e. there is an alarming lack of transparency with respect to data, information, content and their different usage and ownership models in the Cloud context. Furthermore, when one adds in other constraints (e.g. annoyingly out-of-step, geo-political territorial restrictions on mobility) to such innovative Cloud based services as Amazon’s Cloud Drive , one could easily end up with a truly formidable challenge that defies any simple or simplistic resolution scenarios.
An army of lawyers, (even ones improbably well versed in computer technology and programming), could not hope to decipher such puzzles in a month of Sundays. So where does that leave us? Luckily nowhere too nasty yet, as sparse incidents of cloud related IP infringement cases can attest. Fortunately, the seeds of potential solutions may be found in the foresight of initiatives like Free and Open Source Software, with their liberal licenses, or the Creative Commons which provide appropriate interfaces for human, machine and the legal systems to use and re-use digital content legally (See my separate blog article for more information about the Creative Commons).
In conclusion, at this point in time a lot of attention is being paid to such cloudy issues as: Cloud security, data access and controls, as well as service assurance and business continuity; but once these are resolved and have become Business-as-Usual, the lack of clarity around IP in the Cloud may surface to negative effect. The time is right for all stakeholders (i.e.: Cloud service providers and operators; business and consumer end-users; Policy makers) and their trusted advisers to start thinking about addressing and influencing the potential outcome of a major IP meltdown in the Cloud.
It’s not often one gets an opportunity to attend three compelling events in one evening, but as luck would have it, the stars were aligned and I managed to do just that in a mad scramble from one venue to the next. Such are the benefits of living and working in a great city like London, but less so were the thorny issues under debate at each of the three events.
It took a minute to digest and process various messages from these events, but as promised / tweeted, below are three key points, take-away or opinions:
1. Publishers must embrace multi-platform models as business-as-usual (Publishing Expo 2011)
It was standing room only at the Multi-Publishing & Digital Strategies Theatre in a packed final session on “the future of multi-platform publishing”. According to one of the speakers, “the bleeding edge of multi-publishing model is one third print, one third digital, and one third live events.”
My Comment – Never mind multi-platform, it sounds more like a multi-model approach will be necessary for the entire creative industry, in my opinion.
2. But how do you value Intellectual Property? (IP For Innovation And Growth)
This has to be one of the thorniest questions for IP, because consistent and intelligent valuation of IP is at best confusing, or non-existent. IP is really just an economic mechanism, so a fundamental attribute should be the ability to establish an agreed value for the property in question, but this presents a severe problem because current valuation are highly subjective and always dependent on the buyer or seller’s points-of-view. Throw in the ability to effortlessly copy and distribute works via digital technology, and you’ll get the somewhat muddy picture.
My Comment – There is a clear opportunity here to create a dynamic and transparent IP valuation model or approach, which can produce the right valuation for IP, based on the buyer / seller relationship and context
3. And does a cash economy make IP any less relevant? (Private Equity Africa)
Apparently, it’s all about cash in Africa which leads me to wonder if and how global IP will work in a cash economy. This event does not immediately appear to have much in common with the others on IP or the creative industry, and even one of the speakers afterwards, said he considered Intellectual Property in Africa to be, and I quote, “nothing more than intellectual masturbation”. However, when you think of the thriving industry and market for music and filmed entertainment (e.g. Nigeria’s Nollywood), it is easy to see how IP can provide an important boost to developing economies. Therefore, even if there is little point in enforcing IP Rights locally, all developing economies must be interested and involved in any discussion relating to global IP rights and digital distribution / piracy.
My Comment – when it comes to content and IP, it is a level playing field as all jurisdictions and stakeholders struggle with the impact of digital technology
Overall, one clear trend I can see emerging from the above is that such tough questions / issues will need even tougher answers and resolutions to overcome. For example, they may well be pointing to the same underlying problem – i.e. a flawed and inflexible concept of economic value – but perhaps that is rightly the subject of another blog and blogger.