Sept - Dec 2016
Global Digital Innovation
Edu Tech 


Don’t let cloud bring you to earth –Check those cloud service agreements!

Do you upload your company data, proprietary information, trade secrets and intellectual property into the cloud?    It often makes sense from a business efficiency and cost saving point of view.   Whether you use a software based service (accessed via Internet/ VPN), or if you have outsourced this storage /computing functionality in that your company uses a “virtual machine” component of the service provider’s outsourced hardware or if you physically host your company’s server in a service providers physical location, you need to scrutinise the outsourced cloud service providers Service agreements carefully.   A legal scoping ensures heightened legal scrutiny on terms of engagement, data safety and on so called “evading laws”.

When leveraging the cloud, the following legal terms and/clauses merit scrutiny in the perusal and negotiation of cloud documentation:

  1. Check the “Content in the Cloud Services” clause very carefully and contract out of clauses that give the cloud service provider a worldwide licence over your content.  While this is generally a term in “free to use” cloud services, it may crop up in a “pay to use” service agreement.  Do not give away ownership of your data.
  2. Pay careful attention to “Data Privacy and Security” clauses and ensure that all possible security safeguards and confidentiality measures are in place.  The “how and where “aspects of data storage and processing is significant from a legal compliance perspective.   Be wary of clauses that limit and/or exclude liability for data security and security breaches.  Pay particular attention to compliance with the impending Protection of Personal Information Act, which is soon to be signed in to law.
  3. Incorporate a “Warranty and Security Intelligence “ clause against cyber security breaches and insist on security prevention and detection intelligence systems. This may just be a salve when you hear of governmental intrusions (like the recent NSA PRISIM disclosure) or other large scale hack attacks and you could potentially hold your cloud service provider accountable for not taking sufficient measures against advanced and/or persistent security breaches.
  4. Audit” clauses will ensure that you have a sense of security about the cloud service provider’s systems and security.  This is important in ensuring data security and privacy obligations as well accounting and anti – corruption compliance preventive measures.
  5. The "Up time/Availability” of the service clause, has practical value to your daily operations and access.  Ensure that it meets your company’s operational needs and where applicable, those of your outsourced vendors and/ or customers.
  6. Response Time “becomes critical when dealing with real time currency transactions and banking and/ commercial data.  In health care sectors it may just be life -saving and time delays in data access can also become potential liability suits.  Government entities may also have critical access needs for international relations/foreign affairs engagements, law enforcement and ICT bandwidths and long delays can be detrimental to a country’s trade, economic and safety needs as well as its growth.   
  7. There are also the ever important “Disaster Recovery and Business Continuity” clause considerations that have pretty much the same implications as “Response Time”.   You may want to inquire as to what back up procedures exist and consequently scope any potential legal issues arising therefrom.
  8. Scheduled Downtime and Maintenance” become significant if your service provider is based in a different time zone geographically.   Negotiate so that all mandatory maintenance is conducted during your country specific time zone and out of office hours.
  9. Data Return” clauses are not to be missed.  You would need to consider the return of the data at the end of the contract. 
  10. It is generally a clause in the “Liability for Services” section that is troublesome when it comes to the so called evading laws quagmire:


    1. Do not contract out of a compliance responsibility that is the service provider’s by agreeing to be responsible for compliance issues.
    2. Read the jurisdiction clause very carefully, as it may sometimes contain a  multiplicity of jurisdictions for various service providers who are contracted to the cloud service provider and/ or may contain a specific international jurisdiction.  

There are no specific cloud computing laws and compliance with existing laws is required. As prudent lawyers do, always ensure that local laws and regulations are compatible with cloud computing agreements.   While there is a need for amendments inter- alia to existing legislation in terms of company records and access, make sure that you that you are familiar with the Companies Act 71 of 2008, Tax Administration Act 28 of 2011, the Electronic Communications Act 36 of 2005, Independent Communications Authority Act of South Africa Act No 13 of 2000, and the Electronic Communications and Transaction Act 25 of 2002.


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Creator Spaces   Designing Innovation Economics


Ayesha Dawood

I liked this when I came across it “Thinking is a kind of making, and making is a kind of thinking" says Jessie Shefrin former Provost of The Rhode Island School of Design and past Dean of Graduate Studies of The Rhode Island School of Design.

I like this too, alot 'design thinking ... is the expression of communication – the form itself...' that is the response I got when I asked John Maeda, at a talk at MIT this year what design thinking is -- Is it the form, is it the way it is presented .. and how does it impact international affairs? His response has got me mulling on innovation economics – and a very 21st century focus. The innovation economics idea was introduced to me by Professor William Fisher of Harvard Law School, Wilmer Hale Professor of Intellectual Property. And so Professor Fisher I take the liberty to propel this idea to designing innovation economics in the 21st century. So here I am positing Creator Spaces as innovation economics in action. And yes, Prof Fisher, Intellectual Property is important and as you say, only and only if it creatively engages with culture. So I take the creative engaging with the culture of a people, the culture of counties ... to a culture of creation. So, I am building and creating and designing too. Is this Ronald Dworkin`s chain novel theory playing itself out – a step by step building of things.

In particular I focus on Creator and Maker spaces which I call Creator Spaces. It is a movement rapidly gaining traction – and pioneering new pedagogies – tinkering, creator and playful learning pedagogies. No doubt this is influencing and will continue to improve a whole new wave – tinkering, playful learning and learning through play and exploration heralding novel creations as well as iterations in the new edu- tech era.

This is innovation economics birthed. A world of tinkering, software and hardware creation including an immersive engagement with technology and with materials –that is what empowers us to be courageous and creative. To make, to create – the art of playful learning and innovator spirit is boldly borne.

In seeing what we create – both online with immersive engaging of technology to building with our minds and hands to creating with materials to embracing the realm of possibilities and yes frameworks ( the lawyer in me screams legal frameworks as much computational thinking calls for system frameworks ). That is the power of Creator Space. They energise, motivate, uplift and propel growth in ones own sense of self, in creativity, in making, in building, in designing and cognition and critical thinking. And this is why it makes sense – it is innovation economics in both the digital and physical – a new form of a connected world – a world of immersive technology made simple – a world of creative making and a world of design and designing new things – software, new hardware, new things and while the search for new hardware forms and hardware materials is increasingly opening up new possibilities in materials.... Creator Spaces are about working with what is available as well making new from afresh and in that process new forms are birthed – New software creation is Creator Space and open source learning and remixing also lend impetus to this. See what amazing creations Scratch, an open source computer programme inspiring community learning and inspiring kids to create stories, animations and games - initiated at the MIT Media Lab Lifelong Kindergarden Group - is doing for kids globally here

Designing Creator Spaces is about inspiring people to take charge of their minds and ideas. I marvelled at watching the excitement and agility of the kids at MIT `s Scratch Day this May. Boundless enthusiasm and fun creations – and such confidence.

A new creator pedagogy in the making – yes – but maybe not so new in Africa and emerging economies where creator crafts and tinkering necessities were birthed. It is this staple that will take the shift to tinkering and artful play in emerging economies to levels unparalleled and a boon for innovation economics. Now that is design thinking innovation economics.  Creator Spaces is innovation economics. And yes, Intellectual Property matters.

Ayesha Dawood is a lawyer, writer and artist and educator. She is a Harvard and South African educated lawyer (@ConsultAyesha) She has an LL.M from Harvard Law School and is a recent Fellow of the Weatherhead Centre for International Affairs, Harvard University.