It is common knowledge that when we access the internet, our computers, as part of their basic system functionality, make copies of the webpages we access. As soon as we type in a web address, the internet routers and proxy servers create copies of the webpage we want to look at, and then our computers download a copy for us to look at on our monitors, and our computers cache another copy on their hard drives. In short, copies occur at several stages in the most ordinary and everyday uses of our computers. This raises an uncomfortable copyright issue: because even looking at a webpage involves making copies, and the right of reproduction is a fundamental part of an author's copyright, do we need a license to look at materials online? Common sense tells us that if an author, artist, photographer or filmmaker posts a copyrighted work on a website, the whole point of posting it where people can access it and look at it is to allow people to do just that, so an implied license should exist to cover our ordinary online activities. However, that is just a theory, and not everyone agrees. As recently as 1999, a federal court in Utah said that "when a person browses a website, a copy of the [site] is made in the computer's random access memory, and in making a copy, even a temporary one, the person who browsed infringed the copyright." Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 53 USPQ2d 1425 (D. Utah 1999). If such an opinion were widely followed, it could shut down the internet communications on which billions of people rely every day, so it is probably a good thing that more courts have not iterated the same analysis. Yet it is still an uncomfortably unresolved issue, and it is a result of developments in information technology over the last thirty years, as observed by Professor Nimmer, the noted copyright scholar: "The idea that reading a digital text entails a potential copyright violation shifts policy" and that shift should occur because of a "policy choice rather than because new technology technically triggers concepts" unknown to the pre-digital world. Information Law, §4.08 (2001).
On April 17, 2013, the Supreme Court of the United Kingdom took a step that may help resolve this issue on an international basis. The Public Relations Consultants Association Ltd. v. The Newspaper Licensing Agency Ltd. case questioned whether customers of an online news service that prepares personally customized news reports based on the customer's keyword preferences needed a license merely to view the summarized reports online. The issue became more acute in the context of infringing works: are you an infringer if you read an article that has been posted without the authority of the copyright owner, just because the act of reading involves the automatic creation of copies? The Court said "it has never been an infringement, either in English or EU law, for a person merely to view or read an infringing article." And, on the broader issue of whether simply looking at a web page would be an infringement if the act is performed without a license, the Court said "this seems an unacceptable result, which would make infringers of many millions of ordinary users of the Internet." Reassuring statements which, it may be hoped, will help create the shift in legal policy that Professor Nimmer suggested twelve years ago.
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