The European Commission today welcomed the publication of a study on Intellectual Property Rights, which was carried out jointly by the European Patent Office (EPO) and the Office for Harmonization in the Internal Market (OHIM). This study, “Intellectual Property Rights intensive industries: contribution to economic performance and employment in Europe” (September 2013), measures the importance of Intellectual Property (IP) rights in the EU economy. Key findings of the study are that about 39% of total economic activity in the EU (worth some €4.7 trillion annually) is generated by IPR-intensive industries, and approximately 26% of all employment in the EU (56 million jobs) is provided directly by these industries, while a further 9% of jobs in the EU stems indirectly from IPR-intensive industries. to read more.

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The EU plans to leverage the�����������Dz�������into a golden “digital single market” economy, including a GDP boost of 957 billion euros and 3.8 million jobs by 2020. The report addresses outstanding concerns, clarifies policy and regulatory aspects of the strategy, and sets key actions to assert Europe's future as a “world cloud computing powerhouse”. Whether one�����ǰ���, those in technology, regulatory, and business law would do well to prepare for likely squalls ahead.

First, the strategy involves “cutting through the jungle of standards”—a 27-nation-jungle with all manner of cloud-inhibiting flora, including differing legal frameworks, inconsistent criteria, uncertain jurisdiction, and lack of clear standards. The EC plans to respond with an overarching regime in which cloud providers may obtain certification to reassure clients that they meet set standards of, e.g., interoperability, data portability, and security, and adhere to all relevant laws. Here, problems may arise where ideal cloud standards like seamless transborder accessibility clash with existing legal standards such as transborder data flow restrictions.

Second, there are jurisdictional landscapes abroad to contend with. Conflict of laws figures large in a cloud computing future. Europe will have to collaborate with other countries on issues such as law enforcement, cybercrime,��, and competition; and vice versa.��Take Canada, for instance.����first established transjurisdictional enforcement: one province's court may enforce and recognize judgement from another province if there is a “real and substantial connection between the wrongdoing and the jurisdiction”.����extended this test to foreign jurisdictions, which����applied to enforce a New 91��ɫ copyright decision against an Ontario movie-downloading website. Imagine the complications if, for example, a Vancouver start-up using a Melbourne cloud provider with servers in Berlin were found to have violated () German privacy laws. (Conversely,����confirmed that the Privacy Commissioner of Canada has jurisdiction over foreign businesses or websites if there is a real and substantial connection to Canada and the subject matter is within the office's purview.)

Despite����having brought Canada's privacy laws��, further����with the United States may put Canada's privileged position at risk, with the EC laser-focused on building certainty and trust in cloud computing. The EU zone is well known for its������of the��,��though some have deemed these fears����in light of��.��This becomes especially significant now that EU����will no longer arise piecemeal from general��, but from uniformly enforced��.

Third, the EC seems to place much faith in the power of contracts to assuage worries. Emphasizing “safe and fair contract terms and conditions” as a key goal, the report proposes to create a model contract of standard terms and conditions that certification-seeking cloud businesses can emulate, addressing conditions such as data access, stewardship, control, usage, portability, liability, disclosure, preservation, and reversibility; service upgrades,, and continuity; and termination of services.��Many of these terms, according to the report, are currently missing from typical “take it or leave it” cloud service contracts (known as��), making for one-sided bargains.

Considering the stakes (another key goal is aggressively driving����in the form of��services), these contracts are bound to undergo intense scrutiny and sprout new jurisprudence before anything may be considered “standard”. Combined with conflicts of law and potential tort liability (if, for example, cloud computing became such an integral part of civil society that cloud providers were found to owe some form of fiduciary duty), suffice it to say that private law's future in the clouds looks bright.

Of course, there is always the possibility that cloud computing will lead to nothing particularly new in law. In fact,��, Vice President Public Policy of the Software & Information Industry Association, believes that “there is no need for special privacy, security, intellectual property or consumer protection rules that apply just to cloud computing. Generalized rules, indeed, globally interoperable rules, are best suited to the global, borderless nature of cloud computing.” Most available legal tools needed to achieve such a state of affairs, however, are currently neither globally interoperable nor borderless. Regardless, one thing is��certain: if the EC gets its way, it won't be too long before users across Europe find themselves living on cloud 9.0.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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On October 27, 2011, the High Court of Justice Chancery Division ruled in favour of British Sky Broadcasting Group PLC et al. (Sky) on a against Digital Satellite Warranty Cover Limited et al. (Defendants).

The Defendants were held liable on four separate counts of infringement, including the infringement of Sky’s database rights pursuant to Article 7 of the , [Directive] which has since been. Article 7 of the Directive allows for the protection of a database which demonstrates a “[s]ubstantial investment in either the obtaining, verification or presentation of the contents …” either qualitatively or quantitatively.

Sky, a provider of satellite broadcasting services, communications and television equipment claimed that the Defendants “extracted substantial parts” of their client databases containing information on roughly 9.7 million clients’ names, addresses, email addresses, phone numbers, equipment and installations dates. Further, Sky established that they had invested £250 million on the development of and £300 million annually to maintain and verify their client lists.

The Defendants, citing , argued that Sky’s data was created rather than obtained, verified or presented. In that case, it was held that creation of new “independent materials” – otherwise the underlying data - is not a valid subject for protection under the Directive because the “[p]urpose of the protection by the sui generis right… is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database”. An individual who can show that a substantial investment “[i]ndependent of the resources used to create those materials” was made, could obtain protection. The Court held that Sky had not created new information (except for the installation date) and instead held that they “[s]imply record[ed] pre-existing information in a systematic way” and therefore qualified for protection.

In a 2005 , it was noted that the European Commission recognized that “[c]opyright protection based on the standard of “originality” alone might not be an adequate tool to protect these often considerable investments” due in part to the varying standards of originality between the Member States, and specifically between the common law and droit d’auteur jurisdictions. The Directive provides for two levels of database protection: i) copyright protection involving the intellectual effort of selection or arrangement, and ii) sui generis protection once a substantial investment is made in obtaining, verifying or presenting the data.

Databases are not protected per se via sui generis protection or explicitly in the Canadian Copyright Act. However, a database may as a ‘compilation’ – which is defined under of the Copyright Act as the arrangement or selection of data - qualify for ‘thin’ copyright protection as long as the selection or arrangement satisfies the originality standard of “skill and judgement” as enunciated in CCH Canadian Ltd v Law Society of Upper Canada. In CCH, the Supreme Court of Canada implicitly rejected the ‘sweat of the brow’ industriousness standard recognized in the United Kingdom because it “[t]ip[s] the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation”.

Similarly, a database can be protected as a ‘compilation’ under of the United States Code which defines it as “[t]he collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”.

In , the United States Supreme Court��held that a phone book directory arranged in alphabetical order was missing the “[m]inimal creative spark” of originality required for copyright protection. Further, the Court held that the sweat of the brow standard had dangerous consequences, “[t]he most glaring being that it extended copyright protection in a compilation beyond selection and arrangement — the compiler’s original contributions — to the facts themselves.”

Protection in both jurisdictions exists in the arrangement or selection of the databases alone and not in the underlying data or facts, although protection for the original expression of those facts could be copyrightable.

In , , Professor at the University of Ottawa, Faculty of Law argues that databases that are created based on labour, investment, “whole of the universe”, or arranged in an obvious manner lack the requisite level of originality for protection in Canada and the United States (Scassa, 578-579). Therefore Sky’s database of names, addresses and telephone numbers would not qualify for protection in these jurisdictions based on the industriousness, ‘sweat of the brow’ standard of ‘substantial investment’ alone.

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On October 27, 2011 the European Commission adopted a recommendation calling for the nations of the EU to pool their resources and renew their commitment to the digitisation of European cultural texts and artifacts. These cultural materials are stored in Europe’s digital library, .

As , Europeana represents Europe’s homegrown response to competition from Google Books. Started in 2008 with only 2 million items, Europeana’s collection has since grown to over 19 million objects. These objects include digitised books, photographs, paintings, manuscripts, maps, newspapers, archival documents, audio and film. As Google’s resource digitisation project gained traction in the United States in 2008 and 2009, the EU launched Europeana as a publicly funded alternative that allowed them to sidestep the perils they perceived to exist in Google’s project. The European Commission worried about reliance on a corporate actor for the preservation and reproduction of their culture and history.

As outlined in both the and by the European Commission announcing the adoption of Recommendation 2011/711/EU, EU member states have been challenged to grow the collection to 30 million items by 2015. In order to achieve this goal, the Commission suggests that states seek innovative solutions and adopt programs that engage the private sector. As outlined in the , the Commission is hoping “to get more in-copyright and out-of-commerce material online and to adapt national legislation and strategies to ensure the long term preservation of digital materials”.

Over the last few years, the Commission has been pushing Europeana as a one-stop shop for the digital preservation of Europe’s shared history and culture. This recommendation is simply another representation of the Commission’s commitment to coming up with a pan-European solution which allows the citizens of Europe greater access to culturally significant items from the comfort of their own homes. As stated by the Commission on previous occasions and affirmed in the press release accompanying Recommendation 2011/711/EU, the hope is that Europeana’s content will spur development of educational content, documentaries, and tourism related applications. The Commission states that the digitisation project “will give enormous economic opportunities to Europe’s creative industries, which currently account for 3.3% of the EU’s GDP and 3% of jobs in the EU.”

Europeana and the digitisation activities associated with it are one of the “digital service infrastructures” earmarked for funding under the and the project plays an integral role in the European Commission’s . Europeana has also just launched two innovative projects. The first, entitled “,” is a project that allows citizens to submit their own stories and memorabilia from World War I. So far, Europeana has collected and digitised more than 25,000 items as part of this project.

The second project Europeana recently undertook was the “”. As part of this project, 85 developers were given access to Europeana’s content in order to produce innovative prototype applications for mobile or gaming devices. With the adoption of this recommendation, Europe has once again affirmed its position that the digitisation of culturally significant objects and in-copyright and out-of-commerce represents an important undertaking that requires support from all of Europe’s Member States.

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