Caching and indexing and network-related functions

8.9 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.^[8] 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.^[9]

8.10 Caching improves the internet’s performance by allowing search engines to quickly retrieve cached copies on its server, rather than having to repeatedly retrieve copies from other 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.^[10]

8.11 One Australian internet service provider submitted that approximately 70% of the traffic it delivers to customers is from overseas, and submitted that:

in the event that we are able to cache files locally, we can improve the delivery process, ensure error-free delivery and reduce the time required to download and view content. In our experience, by using caching, transmission overheads can reduce to 1% of what they otherwise would be, without caching.^[11]

8.12 Google and Yahoo!7 made similar comments in their submissions on the value of ‘system-level caching’ to the efficient delivery of internet services to Australians.^[12]

8.13 The Australian Broadcasting Corporation (ABC) noted that caching and indexing are ‘an essential part of the technical delivery process’, without which it would be unable to provide reliable streamed television programming over the internet of a quality acceptable to customers.^[13] Similarly, Screenrights noted in relation to its Enhance Direct TV service that ‘the operation of s 200AAA facilitates proxy caching so as to make the service more technically viable for participating institutions’.^[14]

8.14 The Australian Digital Alliance and Australian Libraries Copyright Committee (ADA and ALCC) submitted that libraries also rely on caching to ‘improve the speed and scalability of user searches’.^[15]

Current law

8.15 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 reproductions’ and one 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’.^[16]

• Sections 43B and 111B provide that copyright in a work or subject-matter is not infringed by temporary copying or reproduction ‘incidentally made as a necessary part of a technical process’ of using a copy of the work or subject-matter.^[17]

• 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.^[18]

• Section 200AAA allows automated caching by computers operated by or on behalf of an educational institution.

Criticisms of the current exceptions

8.16 A review in 2000 of intellectual property legislation expressed concerns about whether ss 43A and 111A were sufficiently wide to cover proxy caching.^[19] The review recommended that if there is evidence that caching is not permitted as an exception, then the Copyright Act should be amended. For example, the review stated that 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.^[20]

8.17 Stakeholders suggested a number of problems with the current provisions. The Australian and Competition and Consumer Commission (ACCC) submitted that ss 43 and 111A do not capture the full scope of copying and communication that may be undertaken in performance of caching and indexing functions since:

• it is not clear what constitutes ‘temporary’ reproduction;

• infringement issues may arise where copying might not be considered part of the technical ‘process of making or receiving a communication’; and

• the exception does not exempt communication of copyright material, such as when communicated to a user.^[21]

8.18 eBay argued that caching exceptions should recognise the making of persistent copies for the purposes of facilitating communication, analysis and research.^[22] eBay also submitted that lack of protection for such activities makes Australia an unattractive place to locate facilities that deliver, in particular, data analysis and search services over the internet.^[23]

8.19 Telstra expressed concerns that the current exceptions do not recognise that, in the digital environment, ‘multiple reproductions and communications may occur’.^[24]

8.20 Optus stressed the importance of caching and indexing to cloud computing. For example, in relation to ‘data centres’ it pointed to estimates that

over 85% of total global data centre traffic within its data centre, and between data centre traffic—that is, data that does not go to the end user. This traffic will involve automatic copying, including for backup and parallel processing purposes. Under the current Australian copyright regime, this may involve infringement of copyright laws.^[25]

8.21 The Law Council of Australia argued that the legal position in relation to caching is ‘confused’ and that ‘it is undesirable to have several overlapping, but distinct provisions aimed at the same basic phenomenon and offering only partial and uncertain protection’.^[26]

International comparisons

8.22 A number of other jurisdictions have specific exceptions that deal with caching and indexing. Article 13 of the European Council’s E-Commerce Directive provides an exception for caching.^[27] 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.^[28]

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

8.24 In Canada, s 31.1 of the Copyright Act (Can)provides an exceptionthat allows persons who provide services ‘related to the operation of the Internet or another digital network’ to telecommunicate or reproduce the work or other subject-matter through the internet or that network.^[29] The section specifically provides that caching to make a telecommunication more efficient does not, by virtue of that act alone, infringe copyright, and appears to cover both the reproduction and communication of cached material. ^[30]

8.25 The Canadian Copyright Act also provides that copyright owners are limited to injunctive relief against a provider of an ‘information location tool’^[31] found to have infringed copyright by making a reproduction of copyright material, or by communicating that reproduction to the public by telecommunication.^[32]

8.26 In the United States, caching, indexing and communication of search results may be non-infringing under fair use. For example, in Field v Google Inc it was held that Google did not infringe copyright by caching a story that the plaintiff had posted to his website. ^[33] 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.^[34] It also considered that Google was able to rely on the US safe harbour provisions for intermediate and temporary storage.^[35] Similar findings were made in Parker v Google Inc.^[36]

The need for greater certainty

8.27 Stakeholders who called for reform suggested that the law concerning caching and indexing should be clarified to achieve greater certainty. A number suggested that caching and indexing should be covered by a fair use exception, noting especially the difficulty in drafting a technology-neutral exception.^[37] The ADA and ALCC argued that a specific exception ‘will always be playing catch up with intermediary activities’.^[38] Telstra suggested that network functions should be protected by a fair use exception which recognises that ‘multiple reproductions and communications are likely to occur’. It argued that the approaches taken in other jurisdictions

remain device/technology centric and therefore risk becoming obsolete as digital technology functions continue to evolve … redrafting based on today’s technical knowledge and standards is likely to render the exemption obsolete in the context of future innovations.^[39]

8.28 The Law Council of Australia submitted that a generally worded, abstract provision aimed at essential technical and internet functions could be adopted, with fairness factors ‘to protect the interest of copyright owners’.^[40]

8.29 Optus argued that the current exceptions may not adequately account for the fact that cloud computing will increasingly require copying of data that is not accessed by the end user.^[41] Universities Australia argued that as universities and other bodies migrate to cloud based systems the education-specific exception under s 200AAA ‘may well come under challenge’.^[42]

8.30 Others supported a tightly-worded exception. For example, the Arts Law Centre of Australia supported an exception ‘limited to what is necessary for the technical functions of search engines and other internet intermediaries and has no detrimental effects on artists’.^[43]

Infringement concerns and current practices

8.31 Other stakeholders argued that there was no practical impediment to caching and indexing in Australia and that the law did not need to be changed.^[44] For example, Australian Film and TV bodies argued that:

Caching and indexing are not new internet functions; in fact, they happen every day. Despite this, no provider of caching, indexing or hyper-linking services, other than the ISP in the unique circumstances of Cooper v Universal Music has been found liable by an Australian court for copyright infringement by authorisation.^[45]

8.32 Concerns were also raised that providing access to cached versions of websites may prevent access to underlying works and deprive owners of advertising revenue from their website.^[46] For example, the Arts Law Centre of Australia argued that to the extent that internet-related functions ‘reproduce copyright works or assist copyright infringers to access works’, they can prejudice the ability of artists to earn an income.^[47] The collecting society APRA/AMCOS did not support any exception that permitted the caching of downloads ‘tethered to subscription services, or material located behind a paywall’.^[48]

8.33 The ABC believed that some of these concerns may be addressed as the industry continues ‘to drive the development of more sophisticated means to protect digital content made available online, such as encryption, digital rights management (DRM), progressive downloading and client verification/authenticating systems’.^[49] The availability of technological protection measures (TPMs) counterbalances the risk of any unauthorised access to digital content. Google also submitted that the ‘robot.txt’ protocol is ‘widely accepted and allows website owners to have complete control over whether and how their content is indexed’.^[50]

Interaction with safe harbour review

8.34 The safe harbour provisions are found in div 2AA of the Copyright Act. The scheme limits the remedies available against ‘carriage service providers’—as intermediaries—against copyright infringement that takes place on their systems, which they do not control, initiate or direct. The scheme currently covers certain activities of carriage service providers including:

• Category A—acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material;^[51]

• Category B—caching through an automatic process;^[52]

• Category C—storing copyright material on their systems or network;^[53] and

• Category D—referring users to an online location.^[54]

8.35 The Australian Government Attorney-General’s Department has issued a Consultation Paper which proposes to extend the application of the safe harbour regime, by replacing the term ‘carriage service provider’ with ‘service provider’.^[55] The new term would cover ‘internet service providers’ and operators of online services.

8.36 A number of stakeholders suggested that caching and indexing by internet service providers could be dealt with by extending the definition of ‘carriage service provider’ under the safe harbour provisions rather than through copyright exceptions.^[56]

8.37 ARIA submitted that the balance established under the safe harbour scheme should not be undermined by copyright exceptions, and that if some entities are not protected in respect of their caching activities, ‘this should be reviewed through the scope of the safe harbour scheme’.^[57] APRA/AMCOS suggested that:

It would be appropriate to consider the exception through the prism of the safe harbour provisions, ensuring that any entity that was able to take advantage of the exception was also constrained by an appropriate mandatory code of practice for the use of the cached material.^[58]

8.38 Other stakeholders argued that the safe harbour provisions do not provide a complete answer.^[59] For example, eBay submitted that if the safe harbours were:

extended beyond carriage service providers, it could operate to exempt from monetary damages the infringement of copyright that occurs in the course of providing many services online. However, this half way approach would not overcome the logical difficulty of providing a ‘safe harbour’ to support copyright infringement. It would be far preferable to substitute a wider but targeted exemption.^[60]

8.39 Similarly, the Law Council of Australia noted that one approach may be to reform exceptions for natural persons and leave service providers ‘to the protection of (extended) safe harbours’. However, it argued that

this approach has its weaknesses. It is not clear that all entities engaged in caching in particular would be online service providers. Further, the Safe Harbours were not designed to operate as a general set of regulations requiring compliance from all actors engaged in network related activities … Creating additional exceptions for direct infringement will still leave work for the safe harbours, which protect from both direct and authorisation liability.^[61]

8.40 Under the Terms of Reference, the ALRC is not to duplicate work being done in relation to a safe harbour scheme. However, in the ALRC’s view, safe harbours need not be used protect ‘internet service providers’ from liability for caching and indexing activities that are not infringement because of fair use.