2. Reproduction Right - Transient Copying
2.1 Telecom supports the Ministry's general approach of creating a specific exception within the definition of copying for transient copying. The exception proposed would cover copying automatically undertaken as part of a technical process involved in making an authorised work, where the transient copies have no independent economic significance. Telecom notes several issues with this proposed exception. The separate exception proposed by the Ministry for ISP caching is discussed below at paragraph 6.10.
Purpose-Based
2.2 As a general comment, Telecom considers that applying a purpose-based rather than a technically descriptive approach to the exception will lead in practice to examination of difficult issues of intention and knowledge in relation to what is largely a technical issue. The current proposed exception requires that the copying be involved in making an authorised use of a work. Where secondary infringement is in issue, this would appear to be both problematic in practice and unnecessary in principle.
2.3 As a matter of practice, much transient copying is undertaken by intermediaries for users. If that copying is only excepted from potential liability if it is for an authorised use, the intermediary will carry the burden of determining whether the proposed use is authorised. This will lead to the many difficulties of monitoring, intention and knowledge which are the subject of ISP liability for secondary infringement discussed below. However, this is not merely an issue for ISPs, but also for any person involving in the provision of transient copies for third parties, whether for commercial or non-commercial purposes.
2.4 As a matter of principle, if the copy or communication for which the transient copy is made infringes copyright, then the person making or using it will have infringed copyright by making it. The transient copy has not derogated from the copyright holder's economic enjoyment of the work and there should be no reason in principle for the transient copy to be the subject of copyright infringement.
2.5 Accordingly, Telecom prefers a technically descriptive exception only, which encompasses temporary reproductions as part of a technical process for making or receiving a communication (see, for example, the s43A(1) Copyright Act 1968 (Cth) Australia - "temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication"). It is noted as well that exceptions for frequently accessed websites, which address a very similar issue, do not require a similar purpose of authorised use for the copies that are temporarily reproduced (see for example, regulation 18 of the Electronic Commerce (EC Directive) Regulations 2002 (UK) ("UK Regulations")).
2.6 Alternatively, if this approach is not adopted, then care must be taken in the drafting of the exception for ISP caching to ensure that the ISP exception takes priority over this exception.
Automatic
2.7 As regards the requirement that the transient copying, to be excepted, must be "automatic", Telecom agrees with the comment that not all transient copying is automatic. Indeed, many current instances of transient copying, as well as many which are likely to develop, involve a mixture of automatic and manual or semi-manual processes.
2.8 For example, it is very likely that service providers will continue to implement caching towards the edges of their networks as part of the more extensive development of push and pull/on demand technologies. This may involve manual or semi-manual actions of directing particular streams of content to temporary storage, so that it may be more efficiently and cost-effectively accessed by users close to that network edge. The same feature of semi-manual processes is already present in the caching undertaken by Internet browsers, which are to some extent already capable of being tailored by users.
2.9 For this reason also, Telecom suggests that an exception requiring temporary reproduction as a part of a technical process, where there is no independent economic significance, is preferable.
Technical Process
2.10 Telecom considers that the requirement that transient copying must be part of a technical process should be stated in a way that accurately identifies the use of a technical process in the making or storing of the transient copy but does not limit the way in which the technical process is involved. While the use of a technical process is always involved in transient copying, transient copying may very often go beyond what is strictly "technically required", while remaining temporary and to enable the making or receiving of communications. This occurs because different decisions are taken both in commercial and non-commercial contexts to cache more or less material, to make more or less use of technical processes and so on.
2.11 Accordingly, Telecom does not support adopting the approach taken in Ireland to except only those copies that are "technically required for the viewing of or listening to a work…". The approach taken in section 43A of the Copyright Act 1968 (Cth) (Australia) is neutral in this regard and preferred.
Back to Top