2011: The legal challenges for the IT industry

Social media, digital SaaS and streaming on demand will continue to dominate 2011 and the legal world will continue to struggle to legislate and regulate online copyright issues, new licensing models and content licensing issues. Once again, these rapid technological developments mean IP is scrambling to catch up and address things like the costs of obtaining permissions from existing rights holders and the complexity of enforcing IP rights in the UK and internationally.

responsibility of the ISP– It’s not a new issue, but it’s definitely still relevant here because under the Copyright Directive and the E-Commerce Directive, internet service providers can be held liable for not removing content that is offensive, defamatory or otherwise infringing rights of intellectual property. In such circumstances, corporate clients should seek compensation for any loss suffered as a result of unnecessary removal or movement of material and should insist on advance notice if any content must be removed. The Digital Economy Law also makes ISPs liable for copyright infringement activities online.

: With the convergence and synergy of action of various teams/technologies, trying to generate responsibilities in case of intellectual property infringement will become very difficult.

content licenses: Obtaining permissions from existing rights holders for the use of images, video or audio content, and the cost and complexity of enforcing intellectual property rights in the UK and internationally. Generally, the standard terms and conditions include a broad license that allows you to use any content stored on their servers. Clients should take special care in identifying the rights they agree to provide to the provider. The content provider will seek to exclude all liability for content stored or posted on its services and will normally include a right in its standard terms to delete any data from its servers.
Privacy – including online employees and child protection

Cloud Computing: As service-based computing continues to move to become utility paid for metered access, “platforms as a service” (PaaS) where third parties can host their software applications for distribution to clients, software-as-a-service and web-based fabric infrastructure, where a system is aggregated from separate building block components by means of a fabric (a stack of switches on a backplane that connects the functions that a PC or laptop performs today, such as processor, memory, input/output and system). software) will be used more often.

SaaS/PaaS providers have a large number of contracts globally, generally looking to offer their services on standard terms. These terms tend to be heavily provider-focused, excluding all but the most limited warranties and any liability for data loss or corruption or service failure. In the UK, standard terms (and in particular any exclusions or limits of liability) are subject to the Unfair Contract Terms Act 1977 (UCTA) and therefore must be reasonable, but it is much safer to try negotiate key provisions in advance rather than relying on legal protection after a problem arises. Customers may also need to request proposed service levels and service credits.

Also in a SaaS/PaaS scenario, the appropriate software licenses must be granted to the customer. This is because users have online use of the software on a PC and without a license this would amount to copyright infringement.

The SaaS provider will not always own the intellectual property rights in the software that is the subject of the SaaS agreements. Where this is the case, the SaaS provider must arrange for the right to sublicense the software to its customers, or have a direct license entered into between the customers and the applicable third party licensor. In the latter circumstances, the SaaS contract should make it clear that the SaaS provider is responsible for managing the third-party licenses, along with paying any license fees. The third party licensor must also be informed that the license agreements refer only to the granting of licenses. All other issues related to the provision of the software, such as delivery, installation, and configuration requirements, must be addressed in separate agreements between the customer and the SaaS provider.

The inclusion of intellectual property indemnities in SaaS contracts is important, because SaaS customers have to trust the SaaS provider to ensure that software license issues have been resolved so that the customer has the right to use the software. software as part of SaaS. However, if the fixes are not done correctly, the client can still infringe a third party’s IPR even if they are not aware of the infringement. SaaS users should be aware of the potential for patent infringement through the use of SaaS agreements. Patent protection is increasingly available for computer software in the US and, to a lesser extent, in the EU. When SaaS agreements are established internationally, IPR compensation should be broad enough to protect the SaaS customer in all jurisdictions in which the software will be used.

In conclusion, the attention and negotiation of contracts accelerates but does not disappear. Instead of software licenses or outsourcing contracts, attention will be paid to service agreements, image rights and data protection issues.

All articles are for general and guidance purposes only and do not constitute legal or professional advice.
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