Introduction
A major issue for copyright lawyers at the present time is how to deal with the arrival and rapid development of the Internet and the prospect of the "information superhighway", world-wide telecommunications systems which permit the rapid, indeed virtually instantaneous transmission around the world, at times chosen as much by recipients as by transmitters, of information and entertainment in all media - print, pictures still and moving, sound, and combinations thereof. The issues are manifold. Is the ease of perfect reproduction and manipulation of material in the digital form used by our communications systems the death-knell of the whole basis of copyright? Are we going to have to reconsider such fundamentals of copyright law as what constitutes publication, reproduction and public performance, or the old distinctions between categories of work such as literary, artistic, sound recording and film? Are we going to see the emergence of a genuine market-place in which producer and user bargain about the price for individual transfers of material, rather than requiring intermediaries such as publishers? Given the ready flow of material across national frontiers, does the international harmonisation of copyright laws need intensification, and should the classic rules of private international law on jurisdiction and choice of law be adapted to enable a party confronted with infringements in another country to sue effectively in his own country and have judgments recognised abroad?
The question of how UK copyright law applies to the Internet and the material appearing thereupon has not yet received much systematic treatment in the standard texts on the subject, even those the latest editions of which have appeared within the last year or two.2 Accordingly this paper approaches its complex subject in a very simple manner, by looking at the main rules of UK copyright defining what material may be subject to copyright, drawing attention to those subject matters which appear to be especially relevant to the Internet and sites thereon; and then turning to how copyright in that material may be infringed, again highlighting application of the rules to websites, and defences available against infringement. This will demonstrate some of the difficulties with which the Internet confronts copyright, and the paper will finish with some of the international proposals to develop the law and to meet these difficulties.
A few preliminaries may be helpful, however. Copyright first developed in the early modern period as a response to the growth of the printing technology which facilitated the rapid multiplication and distribution of copies of written works. The development of copyright has continued to be driven by technological advance in the means by which works can be presented to the public at large, and protection has been extended and adapted to cover photography, cinematography, sound recording, broadcasting, cable transmissions and computer programs. So there is no reason to suppose that, if the Internet does in fact present new problems for copyright, the law cannot be adapted to deal with them. The practical benefit of working within the copyright mould is the continued applicability of the international regime under the Berne Convention and other treaties, which ensures potentially world-wide protection for right-holders (a vitally important point in relation to the global Internet).
A second preliminary point concerns the functions of copyright. Two major conceptualisations of this can be identified in the world's legal sytems. The Anglo-American or Common Law tradition emphasises the economic role of copyright. Protection of copyright subject-matter against unauthorised acts of exploitation enables right-holders either to go to market themselves with a product based on the material, or to grant others the right to do so for whatever seems an appropriate price. In the absence of copyright, which would enable free-riding by would-be users, it is unlikely that producers of the material would be able to earn any return for their work, and without that incentive production would dry up. Copyright is thus essentially a response to market failure, a means by which socially beneficial activities can be made financially worthwhile. In contrast, the Continental or Civil Law tradition sees copyright as springing from the personality rights of the producers of the subject matter. This perception is reflected in the name "author-law" given to the topic by the various continental systems - droit d'auteur, urheberrecht, and so on. Protection is given out of respect for the creative act of production, and extends beyond the merely economic to the so-called "moral rights": the right to be identified as the creator of a work, the right to have the integrity of a work preserved, and others. The distinction between the two conceptualisations is sometimes summarised by saying that the Anglo-American tradition is centred on the entrepreneur, the Continental one on the author. The distinction is reflected in various rules: for example, where the Anglo-American tradition gives copyright protection to media works such as sound recordings and broadcasts, the Continental tradition uses a separate group of "neighbouring rights" for these non-author works. Again, where the Anglo-American tradition vests first ownership of copyright in the employer of an author making a work in the course of employment, the Continental tradition always gives it to the author. But it is important not to over-emphasise such distinctions. Continental copyright laws are also a basis for market operations and the author plays a fundamental role in Anglo-American copyright laws, where moral rights are now also developing. 3 Membership of the Berne Convention, which has been the basis of international copyright since 1886 and sets minimum standards for national copyright legislation, has embraced countries from both traditions for most of its history and since 1989 has included the USA. The convergence promoted by the Convention's minimum standards has been further advanced by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). During the 1990s, even more fundamental steps towards convergence have been taken within the European Union, by a policy of harmonisation of copyright law in its Member States through a series of Directives. The global nature of the Internet means that purely national responses to the copyright problems arising are inadequate, and that a convergent approach is required; but nonetheless the deep-seated differences in basic concepts have an effect upon international discussions, the outcome of which may sometimes reflect a somewhat uneasy compromise between the competing schools of thought.The third preliminary is to observe that the legal system which has so far thrown up most of the actual cases about Internet copyright is that of the USA. These cases are of course immensely valuable in showing the kinds of question which are likely to arise elsewhere. But it is necessary to be somewhat cautious in assuming that courts in other countries would necessarily reach the same conclusions. US copyright law is characterised by its express basis in the American Constitution, which empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". The actual law is found in the Copyright Act 1976 with various additions and amendments thereto. The constitutional basis and the general American legal tradition encourages the courts to take a much more overtly policy-oriented approach to copyright questions than would be possible for a British or (even more so) another European court. In any event, as Jacob J once observed when several American cases were cited to him in a case about software copyright, the language of the American statute is not at all the same as that of the British one, and one must therefore be careful of reasoning which may be dependent ultimately on the legislative wording. 4
Lastly, this paper is a much compressed treatment of a very large subject, and space prohibits anything other than fairly abbreviated discussion of the issues. In particular, it is only possible to make the most incidental of references to the Database Directive of 1996, 5 which has important implications in this area of law, and to the problems of international private law.
Some examples
It is always helpful to have good examples with which to illustrate discussion of a complex matter. For Internet copyright, fortunately, a particularly useful one is readily to hand in Scotland in the recent and very interesting case of Shetland Times v Wills. 6 The Shetland Times published by the pursuers is a newspaper the owner of which (Mr Robert Wishart) has established an Internet website or home page here. The opening or front page of the site used headlines from the newspaper upon which users clicked to gain access to the stories as printed under these headlines in the newspaper. Dr Jonathan Wills, who was once well-known as a student Rector of Edinburgh University and was also at one time editor of The Shetland Times, began to publish The Shetland News after falling out with Mr Wishart. Dr Wills also operates a website for his newspaper, using news headlines as the means of access to its stories From about 14 October 1996 The Shetland News page included Shetland Times headlines as hypertext links, and by clicking on these access could be gained to the relative stories on The Shetland Times website, bypassing the front page of that site altogether. The Shetland Times alleged infringement of copyright and sought interim interdict. The practical reason underlying the action seems to be that The Shetland Times hopes or hoped to sell advertising space on its website front page, and of course this commercial benefit would be lost if readers could access the news stories directly and bypass the front page. 7 The Shetland Times obtained its interim interdict before Lord Hamilton, and the case continues. At the time of writing (August 1997), a full hearing on the petition for permanent interdict was expected to take place in the Court of Session on 11-14 November 1997. 8
The case seems to be not untypical of the copyright issues arising on the Internet. A parallel litigation in the USA, now settled, involved an organisation called Total News, from whose website a reader could link on to the web pages of other news organisations such as The Washington Post. Again the real issue appears to have been advertising on the respective sites, inasmuch as even after a link had been made to another site from the Total News one, the display was still "framed" with Total News advertisements. The settlement allows linking but not framing. 9 Another yet-to-be-decided case of this type (albeit one concerned mainly with trade mark rather than copyright questions) is Ticket Master v Microsoft, where the defendants have provided a link to the plaintiffs' website avoiding its home page. In essence the issue raised can be put as being whether providing hypertext links from one website to another infringes the copyright in the second site. 10
Another type of case involves the creator of a website who puts other persons' copyright material on to his pages. In recent French cases, for example, Raymond Quenard's poem "Cente Mille Milliards de Poemes" was placed on two different websites without the authorisation of the owners of the copyright in the work. 11 In August 1997 the BBC obtained the removal from 19 private websites of unauthorised copies of picture and texts from Teletubbies, the popular childrens' TV programme. 12 A well-known American case of this type is Religious Technology Center v Netcom On-Line Communication Services13 in which one Denis Ehrlich unauthorisedly posted on an electronic bulletin board both published and unpublished works by L Ron Hubbard, founder of the Church of Scientology. The case raised the additional issue of whether the bulletin board operator and the service provider with which the board was based could be liable for infringement of copyright along with the person who made the initial copy. Finally there are the cases about those who access and download material from the Internet. Assuming that the material has copyright - as a literary, artistic or musical work, or as a computer program, sound recording or film - is such accession or downloading an infringement of copyright? An issue of this kind arose in Sega Enterprises Inc v Maphia14 where however the ultimate question was again the liability of the bulletin board operator who provided the service through which not only downloading, but also initial unauthorised uploading of copyright material (computer games), took place.
Copyright subject matter
The governing copyright statute in the UK is the Copyright Designs and Patents Act 1988, now several times amended. Under its provisions, the following subject-matter is protected: 15
To what extent are website contents capable of being brought within these categories of protected work? As will be shown below, several if not all of the categories are clearly applicable. The difficulty which may arise is the multi-media nature of the website; which of the categories is most appropriate? 16 The digital medium in which all works on the Internet are basically expressed means that distinctions based on form are hard to apply. However it may not be necessary to characterise the whole of the website in this way. Although the different categories of work are protected for different lengths of time, the periods are uniformly long and unlikely to have much practical impact, when the shortest is around fifty years from the establishment of the website. 17 Again, there are various kinds of infringement, but they all apply in more or less the same way to each of the categories of work. Characterisation of the site may not therefore be necessary, and it may in any event depend on precisely which elements have been taken and which is regarded as forming the most substantial part of that taking. 18
Literary works
A literary work is any work which is written, spoken or sung, apart from a dramatic or musical work. 19 However, the work must be recorded, in writing or otherwise, before copyright will arise. 20 The category includes compilations of material and computer programs. 21 Since a good deal of the material on a website will be written, albeit in digital form, it is therefore potentially protectable as a literary work. But there are still at least a couple of further hoops to be gone through. A literary work must be "intended to afford either information and instruction or pleasure in the form of literary enjoyment". 22 This has been taken to mean that in general a single word, or the title of a work, do not have copyright; similarly with advertising slogans consisting of stock phrases or commonplace sentences. 23 A recent Australian case has held that there is no copyright in the names of computer program commands, since they were merely "triggers" for a set of instructions to be given effect by the computer. 24 The requirement of "originality" also needs to be kept in mind as a threshold which a literary work must pass before it achieves protection. In the UK, "originality" is still best understood as meaning an independent form of expression achieved through the author's judgement, skill and labour, 25 although in the USA the Supreme Court has departed from the American version of this requirement, the "sweat of the brow" test, and added a need for a spark of creativity. 26 The result was to deny copyright protection to a telephone directory as a compilation. There have been some hints in British cases that skill and labour is not enough for originality, 27 and the European harmonisation of copyright may eventually push the threshold a little higher, the favoured formulation at present being that a work should be its "author's own intellectual creation". In particular this formulation is found in the Database Directive, 28 the implementation of which in the UK is expected to take many compilations, electronic or otherwise, out of the protection of copyright.
The implications of these requirements for websites are of some significance. Much of the information gathered on websites will fall into the category of compilation, either as anthologies of material, or as expressions of raw data. The extent to which copyright protection will continue to be available is therefore in some doubt. Important individual elements within websites may well not be protected by copyright, notably the phrases or key words used for hypertext links. This was an issue in The Shetland Times case, where the Times home page used the newspaper headlines as links to the material deeper within the site, and the headline texts were then taken up by The Shetland News to act as the links on to the Times stories. Lord Hamilton held that the headline texts had copyright, so that the actions of the News in copying them for reproduction on its own website was an infringement. Although this view has been criticised in the light of the general denial of copyright to titles and slogans, the creation of a headline does involve skill and labour, in that the reader's attention has to be attracted, information about the relevant item conveyed, and (at least in the case of the tabloid press, which much favours punning and jokey headlines) entertainment provided. So it seems perfectly possible that a headline can be an original literary work, albeit one the protection of which would be very "thin", given the necessarily limited scope of the genre. 29
Musical and dramatic works
The protection provided here is for the written rather than the performed version of such works; but there is no reason why a score or a script should not appear on the Internet. Given the use of fanfares and the like on some websites, it should be noted that the four notes constituting the Channel 4 TV theme have been held to be a musical work for copyright purposes. 30
Artistic works
Websites are full of artistic material and indeed the sites themselves are very often designed with considerable artistic care. For the purposes of copyright protection, the concept of an artistic work embraces graphic works (which includes any painting, drawing, diagram, map, chart or plan), and photographs, and there is no requirement that any of these possess artistic quality. The only requirement is originality, as discussed above. 31
First ownership of literary, musical, dramatic and artistic copyright
The creator of the a literary, musical, dramatic or artistic work is the first owner of any copyright in it, subject to the rule that if the work is made in the course of the creator's employment, the employer is the first owner (unless otherwise agreed). 32 The creator of a website is thus its owner, unless the website is created in the course of her employment. Employment should of course be distinguished from the contract for services under which a consultant creates a website under commission from another entity. If the commissioner wants the copyright as well as the website, it will be necessary to obtain an assignation or an exclusive licence from the creator, and both transactions will need to be in writing. 33 The UK Act also recognises joint ownership arising from joint authorship, where the contributions of two or more authors to a single work are not distinguished from each other. 34 Such a concept may become of great importance in a digital world, which greatly increases the scope and opportunities for the creation of single works by many hands. 35 UK copyright lasts for the lifetime of the author (or the last to die of joint authors) plus a further seventy years from the end of the year of death. 36
Published editions
Copyright subsists in the typographical arrangement of a published edition of a literary, dramatic or musical work, the owner being the publisher. 37 Is a webpage published? Publication is defined in the copyright legislation as the issue of copies to the public which includes making it available to the public by means of an electronic retrieval system. 38 This last is clearly applicable to the Internet. So the author of the arrangement of a website has a copyright (albeit one only lasting 25 years from first publication39).
Sound recording
A sound recording is a recording of sounds from which sounds may be reproduced or a recording of the whole or any part of a literary, dramatic or musical work from which sounds reproducing the work or part may be produced. It does not matter on what medium the recording is made or by what method the sounds are reproduced. 40 Thus if sounds are reproducible as part of a webpage, it will embody a sound recording, and that recording will have a copyright in its own right, regardless of whether or not the sounds themselves are a reproduction of another copyright work. The owner of the copyright is the producer of the recording. 41
Films
For films, the definition is "a recording on any medium from which a moving image may by any means be produced". 42 If sounds accompany the film, they are to be treated as part of the film for copyright purposes, but this does not affect any copyright subsisting in the sound track as a sound recording. 43 Again, therefore, moving images produced on a webpage will have copyright protection. The breadth of the definition with regard to the medium and means of recording and production means that not only videos but also computer games are to be treated as films for copyright purposes. 44 Film copyright is owned jointly by the producer and the director: the latter seems unlikely to figure in Internet discussions, and the producer of a website is presumably the site's operator.
Broadcasts
The definition of a broadcast in the copyright legislation is in terms of "transmission by wireless telegraphy". 45 Since the Internet is dependent on the wires of the telecommunications system, transmission on the Internet is not broadcasting, and copyright protection is unavailable through this medium, at least for the moment. 46
Cable programmes
By contrast, and to the surprise of some, 47 the concept of a cable programme, in which the copyright is owned by the service provider, 48 was held entirely relevant to the Internet by Lord Hamilton in The Shetland Times case. Indeed the principal basis for his decision to grant an interim interdict in that case was the view that a website or items thereon were cable programme services or cable programmes. The 1988 Act defines a cable programme as any item included in a cable programme service, which in turn is defined as a service consisting wholly or mainly in sending information by means of a telecommunication system, otherwise than by wireless telegraphy, for reception (a) at two or more places (whether or not simultaneously), OR for presentation to members of the public Excluded from this definition are two-way or inter-active communication systems, of which a very simple example is a telephone system. 49
In The Shetland Times case two main arguments were presented against the website being a cable programme service. One was that it did not involve sending information but rather allowed information to be accessed by members of the public. The other argument was that the service was two-way or interactive inasmuch as members of the public could communicate information to the site as well as receive it, and so fell outwith the definition of a cable programme service. Lord Hamilton rejected both these arguments, while noting that little technical information was available to him at this interim interdict stage. His rejection of a narrow approach to the word "sending" used in the 1988 Act seems reasonable, since such an approach would end up excluding many services from the protection of copyright. At the very least a website operator enables the material to be sent. The inter-activity point is more difficult. It is necessary to quote the statutory exclusion in full:
The following are excepted from the definition of "cable programme service" - (a) a service or part of a service of which it is an essential feature that while visual images, sounds or other information are being conveyed by the person providing the service there will or may be sent from each place of reception, by means of the same system or (as the case may be) the same part of it, information (other than signals sent for the operation or control of the service) for reception by the person providing the service or other persons receiving it.
The possibility of inter-action between The Shetland Times website and its readers arose because the webpage included a note inviting comments or suggestions to be sent in by electronic mail. Indeed this note was itself a hypertext link moving the reader into an already addressed email template. It was argued that this facility meant that there was the possibility of communication going beyond "the operation and control of the service" by the users. Lord Hamilton thought, however, that this was not an essential part of the service provided, or that it was at any rate a severable part of the service, and hence the exception did not apply. But, although the sub-section does talk about a need to show that inter-activity is an essential feature of the service, it only requires that part of the service be inter-active, perhaps eliminating the notion of severability as a way of evading the exception. The sub-section is also quite clear that only potential for inter-activity is necessary - information "will or may be sent from the place of reception ... for reception by the person providing the service or other persons receiving it". This analysis suggests that the really crucial word in the sub-section is "essential", and it is on the meaning to be given to this word that Lord Hamilton's opinion will probably stand or fall.
A point which was not raised before Lord Hamilton is whether anything on the website was a cable programme, even if the site was a cable programme service. The definition in the 1988 Act already quoted provides the rather inert comment that a programme is an item. 50 But it can be argued that in the context of broadcasting and cable transmission a "programme" is an item with a content the sequence and length of which are determined by the provider, and that therefore, at least "in the case of data bases or other interactive information services .. as a result of the severed tie between a single component and its predefined position in a sequential order, these services no longer constitute 'programmes' in the traditional sense". 51
Duration of media copyrights
Following implementation of the Rental Right Directive in the UK, films have copyright until seventy years after the death of the later of its two authors (producer and director) to die. For sound recordings, the period is fifty years from the end of the year of manufacture or release; for broadcasts and cable programmes, fifty years from the end of the year of transmission; and for published editions twenty-five years from the end of the year of first publication. 52
Infringement
The discussion so far has established that a website is very likely to enjoy copyright protection in some aspect or another. In this section we turn to examine what rights the operator of the website has as a result; or, putting it another way, what acts are prohibited to a user unless authorised by the copyright owner. However, it is also useful to consider the position if the operator of the website has infringed someone else's copyright in assembling the site.
Under the Copyright, Designs and Patents Act 1988 as amended there are now six major forms of primary infringement of the copyright in any protected work. These restricted acts for which a copyright licence must be sought if they are to be lawfully carried out may be listed as follows: 53
In addition, a person who authorises another to do any of the above acts himself infringes the copyright as well. 54 The acts of infringement may be in relation to the whole of the work or to any substantial part of it; and measuring the substance of what has been taken "depends much more on the quality than on the quantity of what he has taken". 55 It follows, of course, that if the act can be shown to have been in relation to an insubstantial part of a work there is no infringement.
A crucial characteristic of the primary infringements is that there is liability even though the infringer is unaware at the time of acting that he is infringing copyright. The lack of knowledge may mean that the infringer escapes damages liability, although he can of course be interdicted and compelled to account for the profits of his infringement. 56 This position contrasts with the secondary infringements, under which, broadly speaking, there is liability for commercial dealing in articles which the dealer knows or ought to know are infringing copies of a copyright work. There is also secondary liability of this kind for those who provide the means for making infringing copies, or permit the use of premises, or provide apparatus, for infringing performances. 57
What effect do these various forms of infringement have in relation to activities on the Internet?
Copying
The 1988 Act tells us that copying in relation to literary, dramatic, musical and artistic works means reproduction of the work in any material form, and includes storage of the work in any medium by electronic means. 58 It is also provided that copying in relation to any category of work (i.e. this time extending to the media copyright works) includes the making of copies which are transient or incidental to some other use of the work. 59 This is generally accepted as covering the loading of software into a computer's RAM. The Database Directive also provides that temporary reproduction is infringement of any copyright that a database may have. 60 The UK definition of reproduction can therefore be fairly readily extended to the browser on the Internet whenever she comes upon a new webpage. There seems to be no doubt, therefore, that when a user accesses a website she is committing an infringement of any copyright there may be in that site unless she has some form of licence for that act. 61 It has been said that this is akin to making it infringement of copyright to read a book, but it appears to be also the law in the USA, although apparently not clearly so in some of the countries of continental Europe. 62 Since it leads to the production of a fixed and not temporary copy, downloading material from a website, whether in digital form to one's own computer or floppy disk, or as hard copy by way of a printout, is more readily recognised in most legal systems as an infringing reproduction. Bearing in mind that a website may be a published edition of a copyright work, with an independent copyright in its typographical arrangement, 63 copying here will mean the making of a facsimile copy of the arrangement, 64 which could probably extend without too much difficulty to the printout although the main target of the provision is reprography, or photocopying. Finally, recalling the Shetland Times decision that a website item can be a cable programme, copying in relation to such a work includes making a photograph of the whole or any substantial part of any image forming part of the programme. 65
The concept of copying implies a causal connection between two works, with the later being derived from the earlier. Independent production of the same or a similar work is therefore not an infringement; copyright is not a monopoly in a particular form of expression. But a court which is shown similarity between two works and that the creator of the second had access to the first is likely to think that there is a prima facie case of copying. 66 There has also been recognition of the possibility of unconscious copying of a work to which one had been previously exposed. 67 This leads on to one of the major issues in modern copyright. Obviously when there is exact copying, as in the lifting of headlines in the Shetland Times case, or the placing of another's poetry or computer games on one's website, there is infringement on this ground; but suppose the copying is not precise? Or suppose, in the case of digital works, that the underlying expression is distinct but that the output looks or sounds the same? It is commonly said that copyright protects the form of expression rather than the ideas expressed; but it is also clear that, since taking "a substantial part" of a work is not allowed, there can be infringement even though the literal form of expression is different. 68 Thus, for example, the substance of a play may be the characterisation and sequence of incidents and events rather than the exact words used, and this can be protected by copyright. 69 The problem comes up most in modern conditions with regard to software and databases, 70 and may well emerge as an issue between websites with regard to their overall design and structure as well as their specific content.
Issuing copies of the work to the public
Section 18 of the 1988 Act in effect defines issuing to the public as putting copies into circulation for the first time71. It is sometimes described as the right of first sale. Only the copyright owner or his licensee can put a new reproduction of the work on the market. The right is exhausted by the initial sale, however; the second-hand bookseller does not require copyright licences in order to carry on business.
The "on demand" transmission characteristic of the Internet does not look much like the issue of copies to the public, although it might be seen as a form of "circulation". This is because section 18, unlike section 17 which deals with copying, makes no reference to the notion of a "transient copy"; the copies required for the purposes of section 18 may therefore be limited to those which are non-transient, which would go beyond mere "on demand" transmission. If so, it would then follow that the user who accesses material and passes it on to another is not guilty of infringement under this section so long as the transmission is electronic. But if these difficulties can be overcome and initial accession be described as the issue of a copy to a member of the public, the question still arises whether the principle of exhaustion applies so that what a party accessing a website does subsequently by way of further electronic transmission is within her rights just as she would be free to sell on the second-hand market a book which she had been the first to acquire from the publisher. 72
Rental or lending of a work to the public
Rental is making a copy of a work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage. 73 The familiar example is the video or computer game rental, but following the Rental Right Directive of 199274 most forms of copyright work are now subject to this right. Lending right, an innovation of the Directive, is similarly defined, save that the restricted act is one performed otherwise than for direct or indirect economic or commercial advantage, and is carried out through an establishment which is accessible to the public. 75 Thus a public library's lending activities now require a copyright licence unless the book lent is within the Public Lending Right scheme set up in 1979. 76 Rental and lending do not cover making copies available for the purpose of performance, showing, playing or exhibiting in public, or for the purpose of on-the-spot reference use. 77 Are rental and lending rights applicable to Internet activities? 78 There are again difficulties with the concept of a copy, which is what must be made available, and this is underlined by the need for an expectation that the copy will be returned. This is difficult to square with the ordinary usages of the Internet. For rental some sort of economic or commercial advantage is necessary, while for lending there must be an establishment accessible to the public. It is less difficult, but still not easy, to see these in normal Internet services. Finally the browser or surfer on the Internet may be making "on-the-spot reference use" of the service, which would mean that the provider was not engaging in rental or lending activities.
As a footnote, it may be observed that the Database Directive provides for a sui generis right to prevent "re-utilisation" of the whole or part of the contents of a database, defining this as any form of making available to the public by distribution of copies, by renting, or by on-line or other forms of transmission. Public lending is excluded, and first sale of a copy of the database within the Community exhausts the right to control resale within the Community. 79
Public performance, showing or playing
The public performance right is restricted to literary, dramatic and musical works, and is particularly important for the exploitation of music and drama for obvious reasons. As discussed earlier in this paper, there is no reason why the script or score of a dramatic or musical work should not appear on a website, but more typically a webpage will incorporate a literary work. For the purposes of the 1988 Act, a performance covers any mode of visual or acoustic presentation, including by means of a cable programme. 80 There is nothing in this language to prevent an unauthorised display on a computer screen of the text of a literary work being a "performance" of that work, provided that it takes place "in public". 81 In the case of sound recordings, films, broadcasts and cable programmes, the equivalent form of infringement is playing or showing the work in public. 82
What will prevent this form of infringement being of much relevance to the Internet, at least in its present pattern of usage, is the fact that most displays of material do not take place in public. But it is important to be aware that the definition of "public" for this particular copyright purpose is quite wide. "To be in public a performance does not have to be to a paying audience or by paid performers." 83 There has to be an audience for the performance, and the critical question is the relation between the copyright owner and that audience, "emphasising the primacy of the owner's entitlement to an economic return from his proprietary rights". 84 Traditionally the audience has been grouped together in some place where members of the public may gather, such as a theatre, a club, a shop or a place of work. But it is no longer clear whether a gathering in one place is a necessary condition for performance in public. Thus in recent times, it has been held in Australia that playing recorded music "on hold" to users of mobile telephones was "in public" even though the distribution of the material was not necessarily, or even very often, simultaneous for each member of the audience. 85 The Spanish Supreme Court has also held that non-simultaneous transmissions of copyright material to different persons in individual hotel bedrooms requires copyright licences. 86 The impact of decisions like these is most likely to be felt, not by the individual user accessing a website from a personal computer, but by the website operator who has incorporated other people's copyright material on his site, and could therefore be seen as performing or playing or showing that material. The fact that the members of the audience would be quite unaware of each other, and joining and leaving the audience at various times, would not seem to be relevant. There does appear to be a statutory defence in section 19(4), however:
Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means (computer on modem or network?), the person by whom the visual images or sounds are sent … shall not be regarded as responsible for the infringement.
Broadcasting or inclusion in a cable programme service
Neither accessing a website nor incorporation of other people's copyright material thereon can constitute broadcasting, since as already noted broadcasting is a wireless technology. 87 But "inclusion in a cable programme service" was the second basis for the interim interdict in the Shetland Times case. A question which may be asked, however, is whether enabling a user of one website to link to another site means that the second is "included" within the other, or whether there are simply two connected but otherwise independent sites, the appropriate analogy being perhaps with footnotes or bibliographies or "further reading" lists in a printed text.
Adaptation
This form of infringement applies only to literary, dramatic and musical works. Examples of adaptations are translations in relation to literary works; dramatisations of non-dramatic works; arrangements or transcriptions of musical works; and arrangements, alterations or translations of computer programs. 88 It is perhaps with regard to this last that this form of infringement is most relevant to the Internet and website operators in particular.
Authorisation
Authorisation of another to infringe is itself infringement. 89 The courts have defined authorisation as meaning sanctioning, approving, or countenancing, where there is authority or control over those who actually infringe. 90 This form of liability has obvious importance for the commercial service providers, universities, and other bodies which set up the facilities on which infringing Internet activity takes place. Can such bodies be liable for infringing use of the facilities as authorising it to take place? The general answer is probably in the negative so far as the UK is concerned. Commercial libraries renting out sound recordings and manufacturers of double-headed audio tape decks have been held not liable despite the fact that their services and products rendered infringement easy and probable. 91 Two crucial factors in these cases were that lawful activity was possible with the facilities provided, and that the defendants had given express warnings to customers against use for infringing copying. By contrast, a university which provided photocopying facilities for staff and students in its library was found to have authorised infringement because it had taken no steps to deter such activity. 92 The appropriate action for those who provide Internet facilities therefore appears to be ensuring that users are made aware of the existence of copyright and warned against its abuse, whether in putting material on to the service or downloading it.
Situations in which service providers and site operators might be liable for authorisation of infringement may appear from consideration of the substantial body of US cases which focus upon the equivalent concept of contributory infringement. The decisions do not appear favourable to service providers and bulletin board operators. In Religious Technology Center v Netcom On-Line Communication Service,93 for example, it was held that a service provider could be liable as a contributory infringer if it knew or ought to have known that infringement was taking place on its system, and if simple steps to prevent this were not taken. But the court did provide some comfort for providers and operators in that the claim of primary infringement had to be reasonably verifiable by them before it could be held that they had failed to act. More recently, in Sega Enterprises Ltd v Maphia94 and Sega Enterprises v Sabella95 there have been specific findings of contributory infringement against bulletin board operators on the basis of knowledge of and participation in the primary infringing activities (copying video games) by provision of facilities, solicitation of unauthorised uploading by subscribers, the provision of "road maps" on the bulletin board to identify games available for downloading, and the sale of copiers to facilitate the playing of the downloaded games. Despite the caution with which the British courts have handled this particular form of infringement, there can be little doubt that, confronted with similar facts, they would find authorisation of infringement to have taken place.
Secondary infringement
Two comments may be made about the "secondary infringements" which were briefly summarised at the beginning of this section. 96 Infringement by dealing in infringing copies would seem to require hard rather than electronic copies. 97 Infringement by providing either premises or apparatus for infringing performances might have implications for businesses such as "cyber cafes", if it can be said that display on the Internet is an infringing public performance of a work. 98 Peter Wienand has also drawn attention to the importance of section 24(2) of the 1988 Act: 99
[The] Act provides that it is also an act of secondary infringement to transmit a work "by means of a telecommunication system (otherwise than by broadcasting or inclusion in a cable programme service), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere" [emphasis supplied]. Although this requires a belief that the reception will result in infringing copies, this is not difficult to establish if ... electronically (albeit) transiently stored copies are infringements. This could mean that unauthorised senders of material via the Internet will be infringing copyright unless they could convincingly argue that they did not believe that (infringing) copies would result.
Defences
Fair dealing
The Copyright, Designs and Patents Act 1988 makes extensive and detailed provision by which various specified acts which would otherwise fall within the scope of the infringement rules are made lawful. 100 Such acts therefore do not require the licence of the copyright owner. In this it contrasts with US law, which provides a general "fair use" defence covering purposes "such as" criticism, comment, teaching, scholarship and research, and indicating that factors to be taken into account "include" such matters as whether the use is of a commercial nature or for nonprofit educational purposes, the amount and substantiality of the portion used in relation to the whole work, and the effect of the use upon the market or value of the copyright work. 101 There is also a contrast with Continental laws, which tend to exclude private copying from the scope of copyright. 102
Probably the most obviously significant permitted act for users of websites under the 1988 Act is the provision that fair dealing with a literary, dramatic, musical or artistic work (but not computer programs or media works) which is for the purposes of research or private study does not infringe its copyright. The exemption would appear clearly applicable to the user of a website making hard or electronic copies of the material she finds there; but how much can be taken? Parliament has resisted publishing lobbies seeking a quantifiable measure of how much of a work may be copied or used under this exemption, and it remains arguable that in some circumstances the whole of a work may be taken. Can the operator of a website use the research and private study exemption to justify putting up on her site the copyright works of others? In the French cases about the unauthorised inclusion of the poetry of Raymond Queneau on websites, it was held that a website unprotected by security devices and open to any visitor was in the public domain and that the copying could not be justified by the general exemption in French law for private copying. 103 UK law has no general saving for private copying, and it seems likely that a British court would reach the same conclusion as the French one, albeit by the route that the private study exemption applies only to one's own study and not to making private study possible for third parties. 104 Admittedly in the UK cases the copier was supplying the copied material in the course of business, while a website producer might well not be earning any financial return from her activities; but the court would likely be concerned about the probable damage to the earnings of the copyright owner and so deem the activity unfair.
Fair dealing for purposes of criticism or review also exempts from charges of copyright infringement. 105 In an American case about posting the published and unpublished works of L Ron Hubbard on a bulletin board, the party who made the posting was held unentitled to a fair use defence although he had added to the texts some criticisms of Hubbard's doctrines, in consequence of the very small amount of commentary compared to the quantity of copied text. 106 There is a parallel case in the UK, also involving the unauthorised publication of the works of L Ron Hubbard with some critical commentary, but in traditional rather than electronic media. The Court of Appeal also found that the fair dealing defence was inapplicable, for reasons anticipating those of the American court. 107
The limited scope of the permitted acts bear particularly harshly upon activities within educational establishments. 108 It is of some interest, therefore, that Sir Ron Dearing's 1997 report on the future of higher education in the UK, which argues strongly for greatly expanding the use of information technology in the sector, has commented that "there must be provision for the free and immediate use by teachers and researchers of copyright digital information". 109 The Report recommends a review of copyright legislation to facilitate this. Such a sweeping exemption would run counter to the British tradition in this area, but would find support in, for example, US and German legislation.
The 1988 Act also contains very detailed provisions exempting certain activities of libraries and archives from the scope of copyright infringement. Speaking very broadly, these provisions enable libraries and archives prescribed by the Secretary of State to supply readers with a single copy of copyright material for the purposes of private study or research, provided that the reader pays a sum not less than the cost attributable to producing the copy. 110 No website operator has yet been designated by the Secretary of State for these purposes, and it seems clear that library-like or archival activities with copyright material by such an operator will fall outside the scope of fair dealing. 111 It would certainly not be possible for an operator to claim fair dealing in making copies in advance of a specific commission, or in retaining them until a commission was given. But if it is right that a website is a cable progamme service and a webpage a cable programme as an item within the service, as held in the Shetland Times case, then there may be room to plead the "time-shifting" exemption which is specifically allowed under the 1988 Act for private recording of broadcast or cable material to enable it to be viewed at a more convenient time. 112 This would seem most likely to benefit the user of the web page.
Implied licence
There is no requirement in UK copyright legislation that non-exclusive licences should be in writing. "Express consent [of the copyright owner] is not necesary and a licence may be implied from the dealings between the parties." 113 Given the nature of the Internet, it seems highly probable that a person who puts material on a website is consenting to its being accessed by users of the system, so nullifying the infringement by transient reproduction which would otherwise arise under UK law. There are also questions about whether such an implied licence legitimises access by means of hypertext links, as in The Shetland Times case, or through the use of search engines. In particular, does the operator of a website impliedly licence the producers of search engine databases to add her site to that database, thus making it easier for users to find? In British Leyland v Armstrong Patents Co Ltd114 the issue was the right of the defendants to mass-produce and supply spare parts for cars, the design of which was (as the law then stood) the copyright of the plaintiff car manufacturers. When the case began, owners of cars and other goods were thought to have an implied licence to infringe this copyright for the purpose of repairing their property. The defendants argued that this licence extended to their activities, to enable owners to exercise their rights efficiently. The argument that the implied licence could stretch so far was rejected both at first instance and in the Court of Appeal, 115 because the defendants manufactured the parts before receiving any particular commission from customers. Such reasoning would seem clearly applicable also to the work of the creators of the search engine.
Returning to the user's implied licence, can it go beyond access to cover other otherwise infringing acts, such as printing out or downloading material? This is more debatable, although again well-established practice might mean that, in the absence of express prohibition or security measures by the website operator, such activities should normally be treated as authorised. A recent Australian case, Trumpet Software Pty Ltd v OzEmail Pty Ltd,116 shows how far a court may be prepared to go with the concept of an implied licence. The defendants were held entitled to bundle the plaintiffs' software with their own and distribute it commercially over the Internet against the plaintiffs' wishes, because the software had been originally marketed as "shareware", that is, as available for free use and reproduction. This has obvious significance for the Internet because so many of those putting material up believe it to be a community rather than an area of sharply defined and fenced property rights. But the Australian court did draw limitations upon the implied licence, holding that the redistribution was only to be of the entire software, without any adjustment to the original product.
Public policy and public interest; no derogation from grant
Going beyond the confines of the copyright legislation, the judges have created at least three limitations upon copyright. 117 One is the public policy concept that certain types of work - pornography or material published in breach of a lifelong obligation of secrecy, for example - are undeserving of the protection of copyright. 118 This could obviously cover much material on the Internet. A second limitation is one which allows otherwise infringing acts on the grounds that they are in the public interest. 119 The scope of this defence remains uncertain, but its most obvious application is in relation to the unauthorised publication of information and material generated but kept secret by public authorities. If the authority's motivation in preventing publication is improper - for example, to conceal the failings of its officials - then an unauthorised publication may be justified. 120 A possible test case may be provided by the dispute which broke out in 1997 between Nottinghamshire County Council and three journalists who put on the Internet the previously unpublished report of an investigation in 1989 into the Council's handling of a major child abuse case involving incest and Satanism. The Council obtained a temporary injunction against the unauthorised publication in June 1997, and full discussion of the issues will doubtless take place if and when a full hearing occurs. 121
Finally, in the British Leyland case122 mentioned in the previous section, the House of Lords declared that a copyright owner could be deprived of his rights where their exercise was in "derogation from grant". The context, as already noted, was the manufacture and supply to consumers of spare parts for cars, to which the car manufacturers took objection by means of copyright. The House found that car owners had a right to repair their vehicles, and that the car manufacturers could not exercise their copyright so as to prevent third parties enabling the owners to exercise their rights as cheaply as possible. This was founded on the general legal principle of "no derogation from grant", established in the context of leases, sales of goodwill and easements or servitudes. It had never been previously applied to copyright, and the reasoning of the House on the point is unsatisfactory. 123 The Privy Council has recently indicated that the principle should be interpreted very narrowly in copyright law. 124 Nonetheless, it is still applicable, and may find some application in the context of the Internet, perhaps in relation to the questions about activities such as downloading and the construction and deployment of search engines mentioned above in the comments on implied licences.
International reform
The foregoing survey of the application of UK copyright to the Internet has shown some of the difficulties with which the law is now faced, and the occasional comparative reference has shown that they are also confronted in other legal systems. Given the global reach of the Internet, and its probable social and commercial significance as the network matures into the information superhighway, it has seemed necessary to take international action to enable copyright law to respond and adapt in a reasonably uniform and harmonised way around the world. The USA took the initiative with a report in 1995 by its Information Infrastructure Task Force entitled Intellectual Property and the National Information Infrastructure. The European Union, concerned to harmonise the diverse copyright laws of its Member States, followed suit with Green Papers in 1995 and 1996. 125 1996 also saw the completion, under the auspices of the World Intellectual Property Organisation, of a Copyright Treaty additional to the Berne Convention, which is specifically aimed at some of the most troublesome issues. 126
Some of the treaty is relatively uncontroversial. The 1996 Treaty makes explicit, as Berne does not, that copyright protection is limited to expression and does not cover ideas and other abstractions as such (Article 2). Computer programs receive protection as literary works (Article 4). Databases which by selection and arrangement of their contents constitute intellectual creations are also to be protected (Article 5). Authors are given the exclusive right of authorising the making available to the public of copies of their works through sale or other transfer of ownership (Article 6); "making available" and "other transfer of ownership" may reach the supply of material through the Internet. But it is left to the Contracting Parties to determine when this right is exhausted by first sale or otherwise. Commercial rental of computer programs, films and works embodied in sound recordings is also recognised as within the scope of copyright (Article 7).
However, there are some more difficult provisions and some significant absences. Article 8 provides for a new "right of communication to the public" by wire or wireless means. This right includes making work available to the public in such a way that members of the public may access these works from a place and at a time individually chosen by them; i.e. by way of transmission on the Internet. There was also a proposal for an Article stating explicitly that the right of reproduction included temporary or transient reproduction, as is already the position in the UK, but this was dropped after much controversy, although it was agreed that the present Berne provision (Article 9(1)) does not cover such reproduction. 127 However, Article 10 succeeds in setting the scene for a more restrictive approach to user rights or limitations on the scope of copyright. Article 9(2) of Berne states that reproduction may be allowed "in certain special cases, provided that such exploitation does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author". For some reason, Article 10 of the WIPO Treaty repeats this formula no less than twice, but, significantly, where Berne talks of "permitting" such acts, the Article speaks of "confining" them. The scene is thereby set for the elimination or whittling down of user rights and the assertion of producer control over the use of the Internet. This is also apparent in other Articles, which require Contracting Parties to provide a legal framework to protect technological means of control over use such as copy protection and encryption against circumvention by third parties (Articles 11 and 12), and do not allow any reservations to the Treaty (Article 22).
The new Treaty provides important background to the efforts of the European Union to find its own solutions to the problems. A Directive, a draft of which was expected at the time of writing to be published in October 1997, will probably cover the following areas:
Further possibilities for action are digital broadcasting, levies on the technology which facilitates private copying if this becomes generally allowable, questions of applicable law, law enforcement mechanisms, management of rights at Community level, and harmonisation of moral rights. This last arises because it is thought that in a digital world, an author's work can be multiplied infinitely and also manipulated infinitely; some kind of protection should therefore be available to assert the author's rights to be identified and to have the integrity of his work respected.
In all this, it is evident that the scope and reach of copyright are likely to be considerably extended over the next few years. For many, this will be a matter of regret. The aim is clearly to establish as strong a regime of protection as possible for authors, providing a situation where publication on the Internet can realise its full economic potential. In some sense the divergent Anglo-American and Continental approaches to copyright are drawing together to ensure that the author gets recognition and reward on the Internet as elsewhere. As a result, copyright is moving ever further from controlling the existence of copies to controlling the use made of material, and in this there is a danger of overlooking the public interest in the dissemination of ideas, information, instruction and entertainment without undue burden, and in the rights of free expression and privacy. Yet the uneasy may take comfort. Laws can be written in the most draconian terms, but the critical question is whether they can be enforced. It is all very well being able to say that the author has a copyright in the UK, but what good is that against an infringement in Eastern Europe or Asia? The problem of enforcement of rights is what should be taking up the attention of reformers who want to realise and maximise the commercial potential of the Internet. The new laws are being strongly expressed to act as a symbol of deterrence, an approach which may in fact reflect the real weakness of the position in which commercial interests now find themselves. Much depends on how the technology develops, but one possibility is clearly that the old problem with which copyright is designed to deal - market failure to make the production of ideas and information worthwhile - could begin to disappear. The technology which creates the Internet may one day also mean that an author can make her material available while at the same time ensuring that every user is recorded and makes payment directly to her for the privilege, the whole transaction being triggered automatically in the system by the user's accession of the material. Contract, in other words, could replace copyright. 128 But a world like that appears to be, alas, still some way off.