Caching in on copyright

The multimedia, colourful part of the Internet, the World Wide Web, is slowing down. Traffic is doubling every nine months and jams are common.

The reason for these blockages is simple: 90 per cent of people using the Web are trying to look at the same 50 sites out of a total of around 16 million. As a result large Internet providers, some British universities and numerous companies have adopted a solution called caching. The flaw in their answer is that it may be an infringement of copyright.

A Web cache is a computer with vast storage capacity which stashes copies of the most popular pages on the Web. If this cache is located on a local or regional network a user can be saved the delay of gaining access to the overburdened original. The owners of the cached sites are also saved the worry that their computers may crash under the strain of accessing overcrowded sites, and, as a bonus, more people will be able to view their pages.

But to view caching in these terms is naive. It overlooks the rights of the companies who have published the information. Few companies publish on the Web out of charity: they wish to advertise, to sell and to capture the demographics of those who visit their site. But a Web cache hides these benefits from companies. Not only are cached-companies unable to establish exactly how many people are visiting their site, but they cannot find out who their audience is. And those statistics are one of the major attractions of the Internet.

Caching also adversely affects other companies, especially those supplying Web directories and searches. These companies provide their services free of charge, because their income comes from selling advertising space on their pages. Often, to increase this income, these companies show a different advertisement each time the site is viewed, in a process called 'rolling' adverts. This multiplies each page's earnings, but only so long as the advertisers are happy their advert is being seen. Unfortunately, the caching computer stores just one copy of the popular pages. So there will be just one advertiser who is getting their money's worth. Clearly these companies have a commercial objection to caching.

As a legal basis for their objections, site owners may rely on their copyright. Web pages are protected by copyright, and in special cases, patent. For this reason the owner of the material on each page has the right to prevent its being copyed unless it falls within the exceptions that copying it is "necessary" or "fair dealing".

The necessary exception can apply to computer programs in certain circumstances, and technically a Web page is a computer program. The way a page looks on the Web is dictated by a script, written in a computer language called HTML. This script is a set of instructions which a computer executes, causing the computer hardware to perform the function of displaying the page. That is to say it is a program. Also, a growing trend is to include mini-programs, or 'applets' (for example a small animation), within web pages. (See http://www.nabarro.com for an example).

Those who cache Web pages are copying programs, but they will find it troublesome to rely on either exception. Although each viewer of a Web page needs to copy it into the memory of their computer this is necessary in order to see it. Copying the page to provide it to others is not necessary, it is merely convenient. Caching is also unlikely to benefit from a fair dealing defence. A court is unlikely to view wholesale copying of a commercial creation as fair purely on the defence that copying makes it easier to access information.

It has always been easier and cheaper to copy an author's work than to gain access to it legitimately, so the law vests authors with a copyright and a right to damages and possibly injunctions if that right is infringed.

The same rights apply on the Internet. It is easier to view a cached page than the original, but without the owner's permission the access is illegitimate. Those who make the copy should therefore be wary of cashing in on another's copyright without permission.