The UK Supreme Court (“UKSC”), in the case of Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors  UKSC 18, has asked the European Court of Justice (“ECJ”) if the use of a internet browser can infringe copyright. The question to the ECJ results from an appeal to the UKSC raising the issue of whether or not the mere viewing of copyright material on a website via an internet browser is capable of constituting copyright infringement.
In this appeal the Respondent, Newspaper Licensing Agency Ltd, managed the copyright in material which was made available online through licensing arrangements. The Appellant, Public Relations Consultants Association Ltd, is a public relations agency which monitors news coverage on behalf of its clients and which provides them with the services of the Meltwater group, which uses software to automatically identify relevant news content.
Meltwater holds a licence to access the Respondent’s material. Further, it was agreed by both parties that if such content were included in emails, then those members who received it would require a licence. However, the issue before the UKSC was whether the Appellant’s members would be infringing the Respondent’s copyright if they accessed the copyright material only from Meltwater’s website via a web browser (and did not download it as a report from the website).
Use of a website browser involves the creation of temporary copies of material, both at a local level (on the computer displaying the page) and also by creating copies on internet routers and proxy servers. Article 2 of the Copyright Directive 2001/29/EC (“the Directive”) states that “Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form”.
However, Article 5.1 of the Directive excludes, from the right under Article 2, temporary reproductions which:
- constitute an integral and necessary part of a technological process;
- are temporary, in the sense that they are “transient and incidental” (i.e. deletion is automatically triggered by using or terminating the process);
- have been made for the purpose of transmitting materials through a network, or for other lawful uses (such as internet browsing);
- have no “independent economic significance” (i.e. that they have no independent commercial value other than the inherent value in receiving the material); and
- do not interfere with normal exploitation of the work/material and do not unreasonably prejudice the rights-holder.
UKSC decision and referral
The UKSC’s opinion was that internet browsing was a temporary reproduction for the general purposes of Article 5.1 of the Directive. It also held there was no room to argue that the third, fourth and fifth requirements of the exception are met, thus leaving only the second requirement (that the copies are transient and incidental) in doubt. However, in the UKSC’s judgment the copies were also transient and incidental, and therefore the defence under Article 5.1 was fulfilled.
Despite having reached a decision on the facts, the UKSC decided to reserve final judgment pending a decision on the issue from the ECJ. The reason for this was that the issue has a “transnational dimension” and it is of public importance that it is resolved uniformly across the EU. Consequently the UKSC asked whether the acts of reproduction committed by a web browser were temporary, transient/incidental, and integral/essential.
The UKSC’s opinion that website browsers benefit from the Article 5 exception is logical, well-reasoned and follows the ECJ’s previous interpretation of the Directive and so it seems doubtful that the ECJ will reach a different decision. However, given the significance that a different ruling could have, the ECJ’s ruling will be eagerly awaited by both providers and users of copyright-protected website content.
From a practical standpoint, if viewing copyright material via website browsers was found to infringe copyright it would raise the issue of how such copyright could actually be enforced against potentially millions of web-users. Notably, the UKSC held in this case that accessing copyright material via a web-browser has no independent economic significance. Since this part of the decision did not form part of the reference, it should stand regardless of the ECJ’s decision and casts further doubt on the ability of copyright holders to establish the requisite element of damage in the event that they seek to compensation from anyone accessing copyright materials online.
The full text of the judgment in Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors  UKSC 18 is available on the BAILII website.