64. Many copyright owners are using cloud computing services to deliver copyright material to users.[77] Some of these services provide on-demand access to large libraries of properly licensed music, films, books and other content—whether on a subscription or fee-per-use model, many with TPMs.

65. Individuals may also increasingly use cloud computing services to store copies of copyright material they have copied themselves—such as music files copied from a CD. Storing the copies on remote computer servers can, among other things, enable consumers to access this content from multiple computers and devices, including mobile devices, more easily. However, rights holders may object to this, particularly where they might otherwise license such uses. The Federal Court case in 2012 concerning the Optus TV Now service highlights the potential for new and emerging cloud computing services to infringe copyright, or enable their customers to infringe copyright.[78]

66. The exceptions discussed below that allow users to make copies of certain content for private and domestic use may not always apply if the copies are stored on remote computer servers that the user does not own.[79] 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. However, such a technology-neutral policy applied to private copying may prevent rights holders from obtaining remuneration for certain uses of their copyright material.

67. Companies that offer cloud computing services may also risk infringing copyright, for example by reproducing or communicating copyright material originally uploaded to their servers by their customers. In performing necessary technical functions, cloud computing service providers may risk infringing copyright, just as internet service providers may risk infringing copyright when they index and cache internet content.[80] It is unclear whether these technical functions would be captured by the existing exceptions in the Copyright Act for the making of temporary reproductions ‘as part of the technical process of making or receiving a communication’ or ‘incidentally made as a necessary part of a technical process of using a copy of the material’.[81]

68. Cloud computing represents a major development in the digital environment. Weatherall has written that ‘Australia’s very technology-specific exceptions inhibit the cloud computing model for individuals and create elevated risks for both consumers and internet intermediaries’.[82] The ALRC is interested in stakeholder views on whether Australian copyright law is impeding cloud computing services, and whether exceptions in the Copyright Act should be amended, or new exceptions created, to account for this technology.

69. Cloud services, such as digital lockers, may also be used to store and share copyright material acquired illegally. New or amended exceptions presumably should not permit such activity. Whether companies that provide cloud computing services should have access to the safe harbour schemes for carriage service providers is a question beyond the Terms of Reference.

Question 5. Is Australian copyright law impeding the development or delivery of cloud computing services?

Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?

[77] The US National Institute of Standards and Technology (NIST) defines cloud computing, in part, as: ‘a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (eg, networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction’: Department of Finance and Deregulation, Cloud Computing Strategic Directions Paper: Opportunities and applicability for use by the Australian Government (2011), 10.

[78] National Rugby League Investments Pty Ltd v Singtel Optus (2012) 201 FCR 147.

[79] See below in the section ‘Private copying’.

[80] See above in the section ‘Caching, indexing and other internet functions’.

[81] Copyright Act 1968 (Cth) ss 43A, 43B (for works) and ss 111A, 111B (subject-matter other than works).

[82] K Weatherall, Internet Intermediaries and Copyright: An Australian Agenda for Reform (2011), Policy Paper prepared for the Australian Digital Alliance, 22.