Google’s floating data centres and international IP

by Andrew Watson on 15 October 2008

Google has filed patents on a floating data centre using wave power for electricity generation (HT to Naked Law Google Ahoy and a rainy day cleaning out my feeds). According to the Times (and bloggers),the floating data centres would help solve some of the staggering electricity costs involved in running the giant collections of servers. The idea is to be green and clean while saving money on million pound electric bills — oh and some suggest that Google could avoid taxes by being in international waters.

It’s all very Waterworld meets Sealand.

This got me thinking about an issue of international intellectual property law that I hadn’t yet considered:

What IP rules apply in international waters?

This question hadn’t come up before in the context of LLM work at the University of Edinburgh, or later when developing course materials on International IP for the distance learning programme.  I’m not much on admiralty, so I’m not sure how IP and admiralty fit together. I do know that 5ter of the Paris convention provides for the case when vessels or aircraft of one treaty member enter into another in terms of patent law (it’s not an infringement if temporary).

Internationally, IP is protected nation-by-nation under a system of national treatment and minimum standards, which is in place both for stand alone agreements such as Berne and as a part of the TRIPS agreement (with the WTO). In plain language, this means that international treaties generally set a floor for how (in broad strokes) a country must protect IP, but leaves it up to each country on how they do it.

Once upon a time there was lots of analysis and hand wringing in internet law circles over off shore data havens, namely Sealand.  The idea is that one can make sure that all the potentially infringing or illegal computing/hosting takes place in a friendly jurisdiction that is out of reach of those who wish to stop it.

Offshoring in the broader sense happens all the time. Take online gambling for example, where online businesses set up in friendly jurisdictions such as Gibraltar or Costa Rica. Sealand is a bit unique in that it’s a micronation (contested by the UK) built out of an abandoned British sea fort from WWII that has repeatedly offered the benefits of its unique status as a data haven or site for internet gambling companies. But because Sealand claims to be an independent nation, I assume that the status from an IP standpoint would be the same as for any nation that had not signed on to an international IP treaty (and not as just a rusting pile in the North Sea).

So what would be the status in IP law of a ship or other platform in international waters? Are there any benefits or harms from an IP standpoint at going truly offshore?

Anywho, some food for thought and a topic for further research (and a chance to do some reading in admiralty).

{ 1 comment… read it below or add one }

drllau 11.15.10 at 4:04 am

> What IP rules apply in international waters?
perhaps take a leaf from the Australian Anti Spam law about point of presence. There was a big debate in the high court about copyright infringement where a publisher tried to avoid a defamation law suit by saying the service was not in Australia (and thus sidestepping jurisdiction, a position which the jduges obviously had firm opinios on)

The general conclusion was that the tort occured at the point of upload (not download from some nebulious server out in cloudland). I need to check my old notes but I believe the default setting for a ship in international waters is the place of registration. What is going to be even more interesting is cloud computing mashups where a service might be aggregated from webapps anywhere around the world. I can see clear tax/liability implications here because where is a product/service being managed/controlled? Fun and games for the international lawyers.

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