Re: Licence to view source code.

On Wed, 30 Apr 1997, Michael Lean <m.lean[_at_]qut.edu.au> wrote:
>
> On 28/04/97, Edward Barrow <edward[_at_]plato32.demon.co.uk> wrote:
> >
> > Web pages are copyright works, provided that they are original. To view
> > such web pages requires copies to be made (from the server into various
> > caches, then onto the screen). Such copies are, in UK law at least,
> > copies requiring the consent of the copyright holder. It is reasonable
> > to assume, therefore, that by posting the pages on the server and
> > publicising the URL the copyright holder has granted an implied licence
> > to surfers to make the copies necessary to view the pages. UK courts
> > tend to limit implied licences to the narrowest possible construction.
> >
> > My questions:
> > (a) would the above analysis apply in the US? If not what doctrines
> > apply?
> > (b) would the above analysis apply in other jurisdictions (e.g. Civil
> > Code droit d'auteur jurisdictions)? If not what doctrines apply?
> > (c) does the implied licence (or equivalent doctrine) extend to:
> > i) viewing the document source code?
> > ii) printing the document?
> >
> > [My answer to (c) i) and ii) in the UK would be 'probably not' but I'd
> > be interested in others' opinions]
>
> Given that every browser I've ever used is so arranged that the
> source code (I assume you mean the underlying HTML which produces
> the web page) can be viewed with a couple of mouse clicks, one could
> assume that this is known to those who upload web pages, just as we
> assume that they know about caching on proxy servers and copies
> existing in RAM. Then, by analogy, isn't there an implied licence to
> view the source code?
>
> Also, have you overlooked the fair dealing/fair use defences, or are
> you just particularly interested in the implied licence issue.

In Australia, and probably in most places around the world, a infringing reproduction is a reproduction 'in a material form' (31(1)(a)(i) of the Australian Copyright Act). 'Material form' means the reproduction must have some element of permanency. The question of ephemeral reproductions has been around for a while, that is, reproduction in RAM or cache and the answer has been uncertain.

At the WIPO conference in Geneva, there was a push to 'clarify' the Berne Convention so that ephemeral reproductions would be included within the scope of the Berne Reproduction Right. This was resisted. Supposedly, therefore, the situation is a bit clearer: ephemeral reproductions are not actual reproductions.

'Viewing Source' does not produce a reproduction 'in a material form' and is therefore not an infringement of the reproduction right...

But the new WIPO 'communication to the public' right is possibly another matter...

(This is my first post to this mailing list so if I've said something obvious/inappropriate please forgive me)

Nick Smith
Intellectual Property Branch
Dept of Communications and the Arts
Canberra, Australia
<nsmith[_at_]dca.gov.au> Received on Thu May 01 1997 - 01:44:11 GMT