46. This section considers whether reforms to the Copyright Act are needed to permit the use of copyright material in caching, indexing and other internet-related technical functions that are essential to the operation of the digital environment and the digital economy.

47. Professor Hector MacQueen has written that, in the digital world, copying of protected works occurs ‘constantly and necessarily’:

every time a software program is loaded into a computer RAM, or a surfer opens up a webpage, to take two simple examples occurring several million times a day around the world. There is, in other words, a need to copy before any and every use of digital material, whether long or short, commercial or non-commercial, intentional or accidental, serious or casual.[54]

48. Internet service providers, search engines, web hosts and other internet intermediaries rely on indexing and caching for their efficient operation. For example, Google’s search engine works by using automated ‘web crawlers’ that find and make copies of websites on the internet. These copies are then indexed and stored on its ‘cache’.[55] When a user enters a search query, Google uses the cached version to judge if the page is a good match for the query, and displays a link to the cached site.[56]

49. Caching improves the internet’s performance, allowing search engines to quickly retrieve cached copies on its server, rather than having to repeatedly retrieve copies from remote servers. It is also helpful when the original page is not available due to internet traffic congestion, an overloaded site, or if the owner has recently removed the page from the web.[57]

Current law

50. The copying of works by a search engine for the purposes of indexing or caching may infringe copyright. In addition, when a search engine displays the results from its cache, this may amount to communicating copyright material to the public, a right protected by the Copyright Act.[58]

51. Further, where search engine results contain links to sites that contain infringing copyright material, issues may arise as to whether the search engine may be liable for secondary infringement (authorising infringement).

52. There is no specific exception in the Copyright Act that permits the copying or reproduction of copyright material for the purposes of caching or indexing. However, there are a number of provisions that deal with temporary reproduction and a specific section that deals with proxy caching by educational institutions.

  • Sections 43A and 111A allow for the temporary reproduction of a work, an adaptation of a work or an audio-visual item as part of the ‘technical process of making or receiving a communication’.[59]

  • Section 116AB allows for the reproduction of copyright material on a system or network controlled or operated by or for a ‘carriage service provider’ in response to an action by a user in order to facilitate efficient access to that material by that user or other users.[60]

  • Section 200AAA allows automated caching by computers operated by or on behalf of an educational institution where the system is operated primarily to enable staff and students of the institution to gain online access for educational purposes, to facilitate efficient later access to the works by users of the system.

53. A 2000 review of intellectual property legislation highlighted concerns about whether ss 43A and 111A sufficiently cover proxy caching.[61] The review recommended that if there is evidence that caching is not covered, then the Act should be amended. For example, the review stated, s 43A could be modified to include:

other works temporarily made merely as an element in and so as to enhance the efficiency of the technical process of making or receiving a communication.[62]

54. These sections have not been amended since 2000, and the question of whether they would cover proxy caching remains a concern. For example, Associate Professor Kimberlee Weatherall has noted that the exceptions only cover copies made ‘in the technical process of making or receiving a communication’, whereas caching and indexing facilitates communication to other users.[63] Nor do these provisions account for the fact that material may be cached for longer than ‘temporary periods’.[64]

55. In relation to s 200AAA, it is unclear why only educational institutions are provided protection for system-level proxy caching.

Options for reform

56. Exceptions to address these issues might take a number of forms. The existing exceptions in the Copyright Act might be clarified, or broadened, to apply to a greater range of users. Alternatively, a new exception might be drafted to account for uses of copyright material necessary for technical functions in the digital environment. Finally, a broad and flexible exception that permits such technical copying and communicating might be introduced.[65]

57. Some have called for the expansion of the safe harbour scheme to internet service providers to protect caching, indexing and communication by search engines.[66] The scope of the safe harbour scheme is outside the ALRC’s Terms of Reference.

58. A number of other jurisdictions have specific exceptions that deal with caching and indexing. Article 13 of the European E-Commerce Directive provides an exception for caching.[67] The UK has a specific exception—mirroring the E-Commerce Directive—that allows a provider to cache copyright material so long as the service provider:

  • does not modify the information;

  • complies with any conditions on access to, and updating of, the information;

  • does not interfere with the lawful use of technology to obtain the data or use the information; and

  • acts expeditiously to remove or disable access to the material upon obtaining knowledge that the work has been removed at the initial source, access has been disabled, or a court or administrative body has ordered such removal or disablement.[68]

59. A similar exception for caching exists in New Zealand under s 92E of the Copyright Act 1994 (NZ).

60. Canada’s Copyright Modernization Act 2012 (Can) introduces a specific exception for caching for those who provide internet-related services and internet location tools.[69] The Act provides that, subject to some exceptions, a person who, in providing services related to the operation of the internet, provides any means for the telecommunication or reproduction of copyright material, does not infringe copyright.[70] The exception appears to cover both the reproduction and communication of cached material.

61. Further, the Canadian Act provides that copyright owners are limited to injunctive relief against a provider of an ‘information location tool’[71] found to have infringed copyright by making a reproduction of copyright material, or by communicating that reproduction to the public by telecommunication.[72]

62. In the US, caching, indexing and communication of search results may be non-infringing under the fair use doctrine. For example, in Field v Google Inc[73] it was held that Google did not infringe copyright by caching a story that the plaintiff had posted to his website. The Court considered that the practice was fair use because, among other things, it was transformative in nature and there was no evidence that Google intended to profit from the caching.[74] It also considered that Google was able to rely on the US safe harbour provisions for intermediate and temporary storage.[75] Similar findings were made in Parker v Google Inc.[76]

63. The ALRC seeks comments on whether caching, indexing or other internet-related functions are being impeded by Australia’s copyright laws. Should exceptions cover the reproduction and communication of copyright material for the purposes of indexing and caching? How should any such exceptions be framed?

Question 3. What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law?

Question 4. Should the Copyright Act 1968 (Cth) be amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet? If so, how should such exceptions be framed?

[54] H L MacQueen, ‘Appropriate for the Digital Age?’ Copyright and the Internet: 1. Scope of Copyright’ in L Edwards and C Waelde (eds), Law and the Internet (3rd ed, 2009), 191.

[55] Caching can be described as the copying and storing of data from a webpage on a server’s hard disk so that the page can be quickly retrieved by the same or a different user the next time that page is requested. Caching can operate at the browser level (eg, stored on a computer’s hard drive and accessed by the browser) or at a system/proxy level by internet intermediaries and other large organisation: see, Webopedia, Proxy Cache <www.webopedia.com/TERM/P/proxy_cache.html> at 31 July 2012.

[56] Ibid.

[57] Google Guide, Cached Pages <www.googleguide.com/cached_pages.html> at 30 July 2012. The owner of a website can specifically prevent a crawler from accessing parts of their website which would otherwise be publically viewable, by inserting a piece of code called ‘robot.txt protocol’.

[58]Copyright Act 1968 (Cth) ss 31, 85, 86.

[59] Ibid s 43A deals with a work, or adaptation of a work and s 111A deals with audiovisual items.

[60] ‘Carriage service provider’ is defined in s 78 of the Telecommunications Act 1997 (Cth) to include a party who uses infrastructure provided by a licensed carrier to supply carriage services to the public. Only public internet access providers like Telstra Bigpond would be deemed carriage service providers.

[61] Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000), 108-113.

[62] Ibid, 113.

[63] K Weatherall, Internet Intermediaries and Copyright: An Australian Agenda for Reform (2011), Policy Paper prepared for the Australian Digital Alliance, 16.

[64] Ibid, noting that for large entities, elements of pages frequently accessed might be in a cache effectively for long periods.

[65] See below in the section ‘Fair use’.

[66] In particular, a number of submissions to the Department of Broadband, Communications and the Digital Economy, Australia’s Digital Economy: Future Directions (2009) paper including Google and Yahoo! See also, K Weatherall, Internet Intermediaries and Copyright: An Australian Agenda for Reform (2011), Policy Paper prepared for the Australian Digital Alliance.

[67]Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the internal market (entered into force on 8 June 2000) (‘Directive on electronic commerce’).

[68]Electronic Commerce Regulations 2002 (UK) reg 18.

[69]Copyright Modernization Act, C-11 2012 (Canada).

[70] Ibid, 31.3. This exception also applies to services related to the operation of other digital networks.

[71] This is defined to mean ‘any tool that makes it possible to locate information that is available through the Internet or another digital network’: Ibid, s 41.27(5).

[72] Providers must adhere to certain conditions to benefit from this protection.

[73] 412 F Supp 2d, 1106.

[74] Ibid, 1117–23.

[75] Ibid, 1123–25.

[76] 422 F Supp 2d 492, 497.