Research On The Jurisdiction Over Intellectual Property Rights In A Cloud Computing

With the ever-increasing use of cellular and wireless technologies, data transmission and storage in the "cloud" is greater than ever before. As the representative of a bran-new prevailing paradigm, Cloud computing writes a new chapter in the history of computing. Like any other major technological upheaval, cloud computing brings opportunities for economic, social and people’s life, and also brings a lot of legal troubles. The legal disputes caused by the cloud-based interaction are spreading in a variety of areas, including privacy, information safety, antitrust, intellectual property and more, which involves the discovery of electronic evidence, jurisdiction, information protection, and many other issues. Among them, the jurisdictional problem is the fundamental procedural questions faced firstly when the party institutes legal proceedings to the court and when the court rules the dispute. However, cloud computing exerts a great impact on the traditional jurisdiction rules of intellectual property because of its characteristics of location independence, the dispersion and liquidity of data in the "cloud", and so on. How to allocate reasonably jurisdiction in the "cloud" is already a puzzle of the times placed in front of the theoretical research and judicial practice.According to the thoughts of raising, analyzing and solving problems, this paper carries on systematic study and argument for the jurisdictional issues of intellectual property rights in a cloud environment. The whole article is divided into six parts:In the light of the territoriality,the first chapter divided the traditional jurisdiction rules of intellectual property into two parts: the jurisdictional rules of intellectual property under the constraint of territoriality and the jurisdictional rules breaking through the territorial character of intellectual property.Starting with the special structure of cloud computing, the second chapter makes an all-around discussion about the difficulty in application of the traditional jurisdiction rules in the "cloud".From the perspective of abroad, the third chapter demonstrates the unremitting efforts and attempts from the international community on the jurisdiction problems in the "cloud" : a few of the latest international legislative suggestions, the international scholars’ new ideas- "caveat maleficus approach", and some countries’ response to the cloud computing, such as the sliding scale and the effect test in the United States, the rule of the holder’s profit centre from the European Union and the method of liability principles in Canada. On the basis, combined with the characteristics of cloud computing, the author carries on the systematic analysis and evaluation for these exploration results.Based on our national conditions, the fourth chapter analyzes the impact caused by cloud computing on our current system of the jurisdiction of intellectual property from the legislation and the practice,and then reveals the main problems of our present jurisdiction system.The fifth chapter is the focus and innovation of this article. Here, the author tries to seek the relatively reasonable method and path for the jurisdiction problem of intellectual property in the "cloud". On the one hand, it establishes the basic principles followed by the jurisdiction bases of intellectual property in the "cloud", which indicate the direction for the establishment of our jurisdiction system; on the other hand, the author divides the jurisdiction clues in the "cloud" into three categories: the best jurisdiction bases, the feasible jurisdiction rules and forbidden jurisdiction. It not only improves the existing rules, but also introduces "the most significant relationship principle " and " the forum non convenience doctrine". At the same time, it increases the rules of the place of service provider and the source place of Intellectual property rights. In addition, single point elements should be restricted to be the jurisdiction basis alone.A simple induction is made in the part of peroration. Furthermore, the author also raises some demands and expectations.