ACCC, eBay want cloud clarity

eBay has joined Australia's competition watchdog in urging the Government to iron out technology-specific "anomalies" in copyright law that could harm the development of cloud services.

The two organisations are among 181 so far to make submissions to an Australian Law Reform Commission (ALRC) issues paper. Submissions were published yesterday.

The ALRC sought views on whether current copyright laws impede "the development or delivery of cloud services", and whether or not those laws should be neutralised or exceptions created to allow the lawful operation of cloud services. (pdf)

The cloud issue was brought to the fore after the Federal Court banned Optus' TV Now service, which allowed users to record and view television programs on their mobile devices.

eBay noted in its submission that TV Now had "muddied rather than clarified the law" as it applied to operating cloud services that interacted with copyrighted content. (pdf)

The auction site said the decision created "serious disincentives for the development of cloud services in Australia".

In particular, eBay noted: "Rights that a user might freely exercise by using a device in the home and which they have purchased may not be able to exercise the same rights using a service provided in the cloud where space is licensed or rented from the cloud service provider or the provision of the service is supported by advertising."

"eBay considers it vital for the development of cloud services, and technological change generally, that the law not discriminate between activities on the basis of the technology that is used carry them out," the firm stated.

It sought exceptions in Part III of the Copyright Act that made it clear that "it does not matter if the technology used is owned, leased, licensed by the user or a third party and/or whether the acts take place on a one off or automated basis."

The Australian Competition and Consumer Commission (ACCC) made a similar call for clarity.

"The ACCC considers that, to the extent possible, copyright protection and exceptions should operate on a technology-neutral basis," it said. (pdf)

"This simple proposition raises questions about copyright protection that is tied to particular communications technologies, rather than particular uses."

The watchdog noted that while a consumer might be able to copy a "legitimately purchased CD to create another physical CD for private use without infringing copyright, the copying of a legitimately purchased physical CD to a cloud computing service owned and operated by a third party for private use by the purchaser may infringe copyright."

"Existing exceptions in the Copyright Act, such as those relating to format or time shifting for personal use, do not cater for the technology used by, nor the habits of, consumers," it said.