The definition of the cloud and how it operates is fundamental to an exhaustive understanding of the technology behind it and consequently an understanding of how the laws are affected by this technology. Nevertheless in order to fully understand the true implication of the cloud we must investigate what is being put on the cloud and how it is being used. One could argue that the there are two types of data being put on the cloud:
a) General Data (non personal data) – which attracts Intellectual Property rights
b) Personal Data – which attracts Data Protection rights
This mix of data involved within the cloud environment requires the application of two different types of laws, which can be at a conflict at many points in time especially in a cloud environment. One must therefore consider the implications of this interaction and find a balance between both rights. Should one enforce Intellectual Property rights by diminishing privacy? Whilst the right to privacy and the rights appertaining to copyright can be considered as branches of the same tree, nevertheless these two rights can reach a point of conflict if opposing parties are using them for different reasons. This discussion was also raised amidst the adoption of Electronic Copyright Management Systems operations, which allowed copyright owners to monitor and control a person’s use of copyrighted material and also when the Anti Counterfeiting Trade agreement (ACTA) was given the limelight in 2012. The argument for the Anti-Acta front was that by excessively increasing rights for copyright holders the legislators were jeopardising the privacy rights of individuals, and the internet service providers or cloud service provider in this case would end up ‘policing’ their users to catch any breaches of copyright at the expense of their privacy. Paul Edward Geller argues that in ‘case of conflict, priority must be given to privacy over copyright since the former is a human right, which is also connected to the right of freedom of expression’.
In recital 21 of the Copyright Directive Proposal, the European Commission reiterates the fact that there must be a ‘fair balance’ between the rights of copyright holders and the users of these protected objects. Nevertheless this ‘fair balance’ cannot be achieved in the same way it is achieved in the ‘analogue’ world. The Institute of Information law, in Amsterdam suggests that due to the peculiarities of the digital world, reaching an equilibrium might mean that there should be a shift towards one side or the other. The Cloud is essentially built and made up of the information which is put into it, thus one must understand that it is imperative for all users to have a clear understanding of the distinction between the rights and obligations they have vis-a-vis their personal data, other people’s personal data, and any material which attracts copyright protection and ownership of their ‘non personal’ data uploaded on the cloud.
The growing concerns regarding the cloud are all interrelated and all have a negative impact on the expansion of the technology and may harm the business behind it. One of the major concerns related to cloud computing is the sovereignty of Data. Due to the lack of a general international legislation treating the matter, European companies are afraid of having the slightest presence in the US, since this would mean falling under US jurisdiction. There have been companies such as ‘Deutsche Telekom’, which have publicly declared that they ‘want an official certificate sheltering European companies from American laws on data transfers.’ Recently this thought has been reiterated by the European Parliament through a report published by the Directorate General for internal policies. This report said that, ‘The existing derogations must be dis-applied for Cloud because of the systemic risk of loss of data sovereignty,’ whilst also claiming, ‘The EU should open new negotiations with the US for recognition of a human right to privacy which grants Europeans equal protections in US courts.’
Article originally Published on The Economic Update. This article is written by Dr. Stefan Balzan.
If you would like to contact Dr. Stefan Balzan regarding any ICT LAW related query please contact him on: stefanbalzan@sagajuris.com
