COPYRIGHT LAWS BE PROPERLY APPLIED
TO INTERNET ACTIVITIES?
1. COPYRIGHT INFRINGEMENT ON THE INTERNET
Copyright infringement under the Thai CA 1994 can be
divided into two categories: primary infringement and secondary infringement.
Primary infringement, stipulated from Sections 27 to 30 of the Thai
CA 1994, arises when other people use the exclusive rights of the owner
of the copyright without his or her permission. On the other hand, secondary
infringement, stipulated in Section 31 of the Thai CA 1994, arises when
other people commit the infringement in the course of selling, communication
to the public or importation of the infringing copies with knowledge
or reasonable grounds of knowing about the primary infringement. On
the Internet, copyright infringement may occur in the following activities.
Browsing is the most common activity on the Internet.
Browsing is the term used when an Internet user uses a browser to locate
and display web pages. A browser(1) is a software program
designed to read the Hypertext Markup Language ("HTML"), the
authoring language that is used to write web pages. When an Internet
user opens a web page, the computer will operate by temporarily storing
the content of that page in its random access memory ("RAM")
in order to display the page on the computer monitor. This temporary
storage of a copyrighted work in the RAM brings about the crucial question
in various countries as to whether the activity constitutes copying
under copyright law(2).
In the United States, a copy is created on a computer
system when it is "sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a period
of more than transitory duration(3)." In this
regard, several US courts have held that temporary storage of a copyrighted
work in RAM constitutes copying under the US Copyright Act(4).
The court in MAI v Peak found that because the copy created in RAM can
be "perceived, reproduced, or otherwise communicated," the
loading of software into RAM creates a "copy" under Section
101 of the US Copyright Act(5). However, some critics
have argued that the court decisions misread the statutory language
of the US Copyright Act since under the US Copyright Act a copy must
be communicated for a period of more than transitory duration(6).
Some further argue that a copy stored in RAM on the user's computer
is an unavoidable consequence of technology and transient, and thereby,
the copy may be permitted under Section 107 of the US Copyright Act
that allows copying if it is an essential step in the utilization of
the computer program(7).
In the European Union, Article 2 of the Directive 2001/29/EC
of the European Parliament and of the Council on the Harmonization of
certain aspects of Copyright and related rights in the Information Society
("EU Copyright Directive") defines "exclusive right"
as "the right to authorize or prohibit direct or indirect, temporary
or permanent reproduction by any means and in any form, in whole or
in part." As a result, the temporary reproduction of a copyrighted
work in RAM also constitutes reproduction under the EU Copyright Directive.
However, Article 5(1)(a) of the EU Copyright Directive provides the
exception that "temporary acts of reproduction referred to in Article
2, which are transient or incidental [and] an integral and essential
part of a technological process and whose sole purpose is to enable
a transmission in a network between third-parties by an intermediary,
of a work or other subject matter to be made, and which have no independent
economic significance, shall be exempted from the reproduction right
provided for in Article 2." Therefore, temporary storage of a copyrighted
work in RAM by the Internet user is allowed under the EU Copyright Directive.
In Thailand, one commentator argues that the essence
of copyright infringement is on "duplication" or "copying,"
and thereby the use of a computer in browsing the Internet and incidentally
copying copyrighted work into the RAM does not constitute reproducing
or copying since, after shutting down the computer, no copy of the copyrighted
work is produced(8). In other words, transient copying
is not the reproduction within the meaning of the Thai CA 1994(9).
This opinion may not be acceptable in the international arena since
it is inconsistent with the international trend found in the US Courts
and the EU Copyright Directive discussed above.
Unequivocally, browsing on the Internet causes the
necessary reproduction of a work, even temporary, into the RAM. The
question is whether or not "reproduction" under the Thai CA
1994 requires "permanent reproduction" in order to satisfy
its definition. In this regard, the Thai CA 1994 defines "reproduction"
broadly to include any method of copying(10), and
for a computer program, it means duplication or copying of the program
with any method(11). Furthermore, no Section in the
Thai CA 1994 stipulates that the reproduction must be permanent. Thus,
a temporary reproduction or a transient copy in the RAM could satisfy
the meaning of reproduction under the Thai CA 1994.
Nonetheless, since there is as yet no court decision
or statutory legislation clarifying whether or not the temporary reproduction
of a copyrighted work in RAM constitutes copying under the Thai CA 1994,
the answer to this question in Thailand is still unclear.
Caching is the term used when the browser keeps in
the RAM and hard disk of the user's computer copies of the texts and
images of web pages visited, in order to help facilitate the revisiting
of those web pages(12). The purpose of caching is
to reduce the demands on the network bandwidth (the information-carrying
capacity of the Internet connection between the web server and the user's
computer) and thereby it has helped to prevent the Internet from becoming
overloaded by the rapid growth of World Wide Web Traffic(13).
By keeping copies of web files in the RAM and hard
disk of the user's computer, the browser can retrieve the visited web
pages from the user's computer. It does not have to retrieve those pages
across the Internet every time the user revisits particular pages. Caching
in RAM helps the revisiting of web pages over the course of one session
of Internet use whereas caching on the hard disk helps the revisiting
of web pages from one session to the next.
The issue concerning caching is whether caching constitutes
copying under copyright law. In the United States, the Department of
Commerce's White Paper on Intellectual Property on the National Information
Infrastructure considered copies of web page text and images caching
in the RAM and hard disk of the user's computer, where they might remain
until used in the future, to be reproductions for copyright purposes(14).
In the European Union, caching both in the RAM (temporary) and hard
disk (permanent) clearly constitutes reproduction under Article 2 of
the EU Copyright Directive.
In Thailand, arguably caching on the hard disk of the
user's computer is a reproduction under the Thai CA 1994 because it
creates a permanent copy of work that can be retrieved in the future.
However, like browsing, the question of whether caching in the RAM can
satisfy the meaning of reproduction under the Thai CA 1994 remains to
be addressed. Without any court decision or statutory legislation clarifying
this question, the answer remains unclear.
Mirroring is the term used when one server makes complete
copies of files of another server and places them online. It is an alternative
to caching decided by the operator of the mirror server(15).
The mirror server functions in the same manner as the original server
holding the information. The purpose of mirroring is to lessen the chances
of overloading the original servers.
The mirror servers are sometimes mirrored without the
consent of the original server. This causes a threat to the website
located in the original server. Normally, a website earns income by
selling advertising space on its web page. The advertising rate of a
particular web page depends on the number of hits that the page receives
from the Internet users. A mirror site of an original site could drastically
reduce the hit of that original website. As a result, mirroring can
negatively affect the advertising rate of the original website.
Mirroring raises the copyright question as to whether
it infringes the reproduction right of the owner of the original website.
In this regard, even though a number of websites in various countries,
particularly in Australia have mirrored many US and European websites,
there is as yet no case law concerning mirroring(16).
In Thailand, arguably it is quite obvious that mirroring
is a reproduction under the Thai CA 1994 since it creates an entire
and permanent copy of the original work. Thus, mirroring clearly infringes
the reproduction right of the owner of the original website under Section
15(1) of the Thai CA 1994.
(4) Hyperlinking and Deep Linking
Hyperlinking is the term used when the Internet user
uses a hypertext link on a web page to enable him or her to jump to
another web page of the same website or another website. Generally,
hyperlinking to the home page of another website does not cause problems,
because normally the owner of another website posts his or her website
in order to be visited by Internet users. Nevertheless, hyperlinking
may cause a copyright problem where a text or image qualifying as a
copyrighted work is used as the text or image for hyperlinking. In addition,
hyperlinking becomes a serious problem where a link is to a web page,
bypassing the home page. This is known as "deep linking,"
and is much more controversial where copyright infringement is concerned.
Website owners often object to deep linking because it causes users
to miss advertising and this thereby negatively affects their revenue.
The first case challenging hyperlinking and deep linking
was in Scotland. In Shetland Times v Wills(17), Shetland
Times (the plaintiff) claimed that Shetland News (the defendant) infringed
its copyright by reproducing some headlines on its home page as the
text for hyperlinking to the newspaper articles of the plaintiff. The
plaintiff also claimed that the links to its site bypassed its home
page, which displayed its advertising; the link was directly to an internal
web page of the plaintiffs. In response, the defendant argued in respond
that the use of the plaintiff's headlines could not constitute copyright
infringement, because, free access constituted a basic principle of
the Internet. The Court of Sessions in Edinburgh, by Lord Hamilton,
granted the plaintiff an interim interdict (comparable to a US preliminary
injunction) preventing the defendant from making further hyperlinking
and deep linking to any internal page of the plaintiff's site through
headlines. The case was, however, settled between the parties before
the trial concluded, and thus there is no authority deriving from the
case. Under the terms of the settlement, Shetland News could deep link
to articles on the Shetland Times website, but all headings of these
articles must have the words "A Shetland Times Story" printed
Three later cases challenging hyperlinking and deep
linking arose in the United States. In Ticketmaster Corp. v Microsoft
Corp(18), like the Shetland case, there was no authority
deriving from this case since the case was settled in February 1999,
with the defendant's agreement not to make deep links to the plaintiff's
subordinate web pages. Rather, the defendant agreed to link its Internet
"Sidewalks" guides only to the plaintiff's home page.
In Ticketmaster Corp. v Tickets.com Inc(19),
on 27 March 2000, the District Court stated that facts were not protected
by copyright and thus the use of facts for hyperlinking and deep linking
did not constitute copyright infringement. Secondly, the court held
that hyperlinking, including deep linking did not itself involve a violation
of the Copyright Act since linking simply transferred the user to the
plaintiffs web pages and therefore no copying was involved. Finally,
the court found that deep linking by itself (without confusion of source)
was not unfair competition because the defendant did not pass itself
off as the plaintiff but told the user that he or she would be transferred
to another site(20).
The most popular browsers are Internet Explorer and Netscape Navigator.
See in Just Browsing's
website at http://netforbeginners.about.com/library/weekly/aa120799.htm.
(2) Berne Convention and WIPO Copyright Treaty do not
address the issue of temporary reproduction.
(3) US Copyright Act 1976, s.102(a).
Stenograph L.L.C. v Bossard Assocs., Inc., 1998 US App. LEXIS 11483
(D.C. Cir. 1998); MAI System Corp. v Peak Computer, Inc., 1933 US App.
LEXIS 7522 (9th Cir. 1993).
(6) Reese, Anthony R., "Intellectual Property Challenges
in the next century: Article the public display right: The Copyright
Act's Neglected Solution to the Controversy over RAM 'Copies' "
(2001) University of Illinois Law Review, p.83.
(7) US Copyright Act 1976, s.107 - Limitation on exclusive
rights: computer programs - reads:
"(a) Making of additional copy or adaptation by owner of copy.
Notwithstanding the provisions of s.106, it is not an infringement for
the owner of a copy of a computer program to make or authorize the making
of another copy or adaptation of that computer program provided: (1)
that such a new copy or adaptation is created as an essential step in
the utilization of the computer program in conjunction with a machine
and that it is used in no other manner."
See in Carothers, Jo Dale, "Protection of the Intellectual Property
on the World Wide Web: Is the Digital Millennium Copyright Act Sufficient?"
(1999) 41 Arizona Law Review, p.937.
(8) Thai CA 1994, s.14.
Weeraworawit, Weerawit, above n.3.
(10) Thai CA 1994, s.4 reads:
"Reproduction includes any method of copying, imitation, duplication,
molding, sound recording, video recording or sound and video recording
for the significant part from the original, copy or publication whether
in whole or in part and, as for a computer program, means duplication
or copying of the program from any medium for the significant part with
any method without a manner of creating a new work whether in whole
or in part."
(12) See the meaning of "cache" at Whatis.com's
website, http://whatis.techtarget.com/definition/ 0,,sid9_gci211728,00.html.
(14) Information Infrastructure Task Force, "Intellectual
Property and the National Information Infrastructure: The Report of
the Working Group on Intellectual Property Rights" (1995), http://www.uspto.gov/web/offices/com/doc/ipnii/ipnii.txt.
(15) Vermut, Richard S., "File Caching on the
Internet: Technical Infringement or Safeguard for efficient Network
Operation?" (1997) Journal of Intellectual Property Law, p.273.
(17) Shetland Times v Wills. 1997 FSR 604, 608 (Scot.),
(18) Ticketmaster Corp. v Microsoft Corp., Case no.97-3055
(C.D. Cal. filed Apr. 28, 1997), http://legal.web.aol.com/decisions/dlip/tickcomp.html.
In that case, Ticketmaster, an online ticket seller complained about
the Microsoft's unauthorized deep link to its site because the link
enabled Internet users to bypass its home page which contained advertising
and go directly to an internal page that contained event and ticket
information. Ticketmaster alleged that by offering this bypass, Microsoft's
"Seattle Sidewalks" service constituted trademark dilution;
false, deceptive and misleading representation of association; unfair
competition; and unfair business practices.
(19) Ticketmaster Corp. v Tickets.com, Inc., 2000 US
Dist. LEXIS 4553 (C.D. Cal. 2000).
In that case, Ticketmaster. an online ticket seller sued Tickets.com,
a data aggregator, for using information contained in Ticketmaster,
unauthorized deep linking to the relevant page within the Ticketmaster
site, and unfair competition. Ticketmaster alleged that the unauthorized
deep link of Tickets.com constituted copyright infringement. In particular,
Ticketmaster alleged that Tickets.com infringed Ticketmaster's copyrights
by downloading and reproducing its web pages.
(20) US Code, Title 15. Chapter 22, s.1124.