Author:	Michael Pendleton LLB, Dip Juris (Syd); LLM (Lon) Professor of Law, Murdoch University
Subjects:	Copyright (Other articles) Copyright -- Computer network resources (Other articles) Copyright -- Information storage and retrieval systems (Other articles) Intellectual property (Other articles) Internet Computer Network -- Australia (Other articles) Patents (Other articles)
Issue:	Volume 4, Number 4 (December 1997)
Category:	Current Developments

1. The Attorney General and the government are to be congratulated on the Copyright Amendment Bill (No.1) 1997, which is precised in the accompanying article by the Attorney, Copyright Reform: The Government's Agenda. It attempts, in part, to bring us up to date in this country with the staggering success of online interactive communications networks, principally the Internet, and with the recent WIPO conventions. Regrettably, the efficacy of reform is likely to be short lived. This is no fault of government but rather is due to the international community fixing on copyright as the medium for protection of digital communication. It will be argued copyright is inappropriate, cumbersome and not evolved to carry out this task, in short it is the wrong horse for this course.

2. Because of the fixation with copyright as the vehicle for regulating information technology, rarely has much good sense prevailed in this area of law. An instance where good sense did prevail was the High Court's 1984 decision in Apple Computer v Computer Edge[1]. The court refused to characterise the electronic pulses of object code, which comprise a computer programme, as a literary work. Within weeks parliament had amended the Copyright Act 1968 (Cth) to declare software is a literary work. No contest is pleaded by the present author to the justice of conferring exclusive rights on the devisor of software. The commercial and trade pressures on the Australian government of the time, to utilise copyright for software protection, were understandable. The United States Government, with its pre-eminent interests in this area, and the trade clout to enforce its decisions, had decided copyright was to be the sole vehicle to protect software. Machinery for international protection of works was in place via the various copyright treaties. A new regime for software protection, the ideal way to proceed, would involve the laborious and politically fraught development of new treaties creating a new international species of intellectual property. Thus the choice of copyright. Surprisingly there has not been the volume of litigation on software copyright one might have expected. Such litigation involves laboriously comparing source code between the copyright work and the alleged infringement is immensely more tedious than comparing screen plays, books and novels. The reason for the dearth of cases is that a software copyright case is now as expensive to mount as a patent case. It is an option only available to very well heeled corporations. The key legal concepts of reproduction or adaptation of a substantial part (in a qualitative sense) of electronic pulses has led to arcane decisions here and overseas. In this country the High Court was asked for the first time in legal history to vacate (there was not even any procedure for such an application) its own decision on the basis that it misunderstood the facts, ie. data is different to a set of instructions[2].

3. If software can be protected by copyright then why not online interactive communications such as the Internet? This is the reasoning which led to the recent WIPO treaties, the Copyright Treaty 1997 and the Performances and Phonograms Treaty 1997, and to the derivative Copyright Amendment Bill (No1) 1997. The fundamental problem with copyright and online interactive communications networks is that copyright requires the defendant to make or authorise the making of reproductions or adaptations. With online interactive communications networks such as the Internet it is not necessarily, or even often, that the would be defendant makes reproductions or adaptations. It is the user or net browser who is responsible for causing the computer to make reproductions. This will be illustrated in relation to the making available right discussed below.

4. The broadly based technology neutral[3] "transmission right" discussed by the Attorney and the amendment of the definition of broadcast to include broadcasts with or without wires[4] is a welcome addition to the law. The need for its existence was dramatically illustrated in the recent High Court decision in Telstra v Apra[5]where much turned on the archaic diffusion right and the limited definition of broadcast. The "making available right" and the rights management information right, also discussed by the Attorney, are intended to cover online interactive communications networks. The making available right is welcome in so far as it makes clear that uploading material onto an online interactive communications network, such as the Internet, without the permission of the copyright owner, constitutes a breach of the "making available right" and the reproduction right.

5. The discussion paper states that where, for example, a person, without permission, connects a file server with a copyright article on it to a publicly accessible computer network, such as the Internet, they would infringe the right of making available without exercising the reproduction right. This may well be true but an equally common situation is where a person links a file server containing copyright material from one site on the Internet to another site on the Internet, both sites from the nature of the Internet being publicly available This might be done by a pointer to a third party Web component as an inline graphic or by a hypertext link. In their forthcoming article, Internet and Communications Carriers Liability[6], Macmillan and Blakeney argue as follows:

   It seems unlikely, however, that the making available right would catch the linking of sites in a situation where the material which had been linked was already available to the public by an alternative route, C F Shetland Times v Dr Jonathan Wills and Zenews Ltd [7].

6. In the Internet context an alternative route would inevitably be in existence as this would be direct access to the site from which the copyright material was linked from. Thus Macmillan & Blakeney's view appears to be that the linking of sites is not caught by the making available right. The author of the present paper respectfully agrees. The material has already been made available by the act of first placing the material on the site. A further issue and one with more implications for further reform, is the question of what is made available. The Bill seems to presume it is the making available of copies to the public. This is not surprising as all copyright law turns on the making of copies as evidenced by the word copyright itself. The problem with all online interactive communications networks is that copies (in the sense normally understood) need not be made, and if they are, it is by the user or Web browser, in the case of the Internet. This problem is directly linked to the decision to protect computer software by copyright. With traditional copyright works such as those on paper, reading a work does not require a licence from the copyright owner. In the case of digital works such as computer software, the making of a transient copy is essential to the reading of the work. Thus copyright legislation here and elsewhere has characterised the making of transient copies of digital works as infringements of copyright. Specific exceptions have been made, or have been mooted, in regard to the making of back up copies and decompilation to achieve interoperability or error correction.

7. But these developments took place in the context of a technology where the digital work resided in a identifiable and fairly permanent form, usually a CD ROM, floppy disc, or computer hard drive. Documents in an online interactive communications network have no reasonably identifiable residence. We speak of virtual documents in this context. A virtual document comprises both text and computer programs. The computer programme component is the Hyper Text Mark-up Language (HTML) or successor programs. The appearance of the document is controlled by commands from this programme. In fact a World Wide Web document might contain no text or graphics on the host site, but rather the HTML commands from the host site might fetch text and graphics from other sites. Now if a document was created by copying parts from other sites and making it available for accessing from the host site, the person responsible would, as stated in the discussion paper, in all likelihood be liable for infringement. But in the case of a virtual document the HTML commands themselves take the component parts from other sites. There is no copy on the host computer. The only thing which exists on the host computer is a set of HTML instructions which form a text file and which identify the URL's (universal location protocol) of the components on the sites from which the virtual document is gleaned.

8. If infringement is to be proven the process becomes very complicated. Is the virtual document a reproduction, adaptation, or making available? This appears to require a consideration of whether the reproduction of the URL of documents on other sites by the HTML commands on the host site constitutes infringement. To prove infringement copyright must exist in a URL. This seems unlikely as a URL is merely a coded address according to a protocol. A further question is how the URL was located by the host computer. Normally this is done by the host computer's HTML instructions examining the HTML instructions on the target Web site. Does examining the source code of the target site's HTML amount to an infringement? This is equally problematic as it requires proof of the subsistence of copyright in the HTML commands.

9. All of the above is addressed to the person who instructs a Web browser to link one Web site to another either by a pointer to a third party Web component, as an inline graphic or by a hypertext link. What is the position of the user? By virtue of the nature of the Internet the user can not know the content of virtual documents until they are opened and even then the user is not aware whether the virtual document is resident on the host site or linked from other sites. It is likely some form of license must exist in relation to the user implied from the nature of the Internet. It seems though the license would only be available where the copyright owner consented to placing the work on the Internet. What is the position of the user where the making available right has been infringed by a third party who uploaded a work to the Web without consent of the copyright owner?

10. These are questions not addressed by the Copyright Amendment Bill 1997 (Cth).

[1] (1986) 161 CLR 171

[2] AutoDesk v Dyason No2 (1993)176 CLR 300

[3]Copyright Reform and the Digital Agenda para 4.9

[4]As above, para 4.11.

[5]1997 146 ALR 649

[6] (1998) EIPR 11

[7] (1997) F S R