Appleyard Lees

Copyright in the cloud

At the time of drafting UK copyright legislation, the legislature’s mind was not in the cloud, but firmly on the ground. Technology has since progressed, bringing with it new technological challenges.  No longer do we create work in solitude, using fixed, isolated platforms. Rather, we now work from the ‘cloud’. Our system desktops may be hosted anywhere in the world (I’m currently writing this from a server 100 miles away from my home), or you might upload documents to remote servers for access from any computer, at any time (i.e. Dropbox).

In the UK, under section 3 of the Copyright, Designs and Patents Act 1988 (CDPA), literary copyright arises automatically once the work is “recorded”. Given that UK legislation did not envisage the ability to record literary content in a cloud, does the location of the host impact on the subsistence of copyright in the UK?

Under UK legislation, copyright does not subsist in a work unless it first meets the ‘qualification’ criteria. Thus, a work will benefit from UK copyright if the author is a UK national, UK resident or body incorporated in the UK under section 154 CDPA. In this case, it is therefore irrelevant if the work is created and recorded on or uploaded in a physical medium (i.e. word document) to the ‘cloud’. Accordingly, provided the author is a UK national, and the work meets the other requirements of copyright protection such as originality, UK copyright will subsist in the literary work. In essence, working in the cloud is no different to writing a book or article during a vacation abroad where the computer or server is owned by or hosted outside the UK.

However, in certain situations, the question of subsistence and ownership may become complicated. Where a document is uploaded to the cloud, the document may, as result of the cloud software’s algorithms, take on a different format, or attract new metadata.  In this case, can the work attract new copyright?

In the UK, the test of originality requires a degree of intellectual creation, something mental. The mere uploading of a document and storage in a different format, whether or not as a result of the cloud’s software, is therefore unlikely to result in a new protectable copyright in the UK; there is no obvious intellectual creation. However, the answer may differ in countries which require a lower test of originality or have a different test for subsistence. Where the test does not require any or only a low degree  of intellectual creation, the creator of the cloud software may have any argument that the skill in creating an algorithm to alter the format, albeit automatically, does result in a new original work. In this case, the cloud host may be able to assert ownership rights in the ‘new’ format or as a joint author.  Where there is any ambiguity, the author should check the terms and conditions which govern their cloud storage, which in many cases, will expressly state that ownership remains with the original author.

At Appleyard Lees, we have attorneys with first-hand experience in copyright and trade mark disputes. For more information, please contact Chris Hoole.

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