The Supreme Court recently issued its long-awaited decision(1) in the Meltwater case, which addresses important questions about the application of copyright law to internet browsing. It is the Supreme Court's view that mere browsing (as opposed to copying or downloading) benefits from the exemption from copyright infringement for temporary reproduction under Article 5(1) of the EU Copyright Directive (2001/29/EC). However, due to the impact of this case on millions of internet users across Europe, the Supreme Court has referred the question of the 'browsing defence' against copyright infringement to the European Court of Justice (ECJ).
The Supreme Court considered the provisions of the Copyright Directive. Article 5(1) of the directive provides an exemption from copyright infringement for temporary reproduction. The Infopaq 1 case(2) paraphrased the requirements for Article 5(1) into five conditions that must be satisfied for the exemption to apply:
- The act is temporary.
- It is transient or incidental.
- It is an integral and essential part of the technological process.
- The sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject matter.
- The act has no independent economic significance.
Article 5(5) restricts this exception to certain special cases that do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rights holder.
The appellant was the Public Relations Consultants Association (PRCA), a trade body of which Meltwater is a member. Meltwater monitors news coverage for its clients using online monitoring and search services based on a set of search terms. Meltwater sends the monitoring report Meltwater News to customers by email, but customers can also access it through Meltwater's website.
The respondent (and claimant in the first action) was the Newspaper Licensing Agency (NLA), a collecting society that manages the IP rights of its members by providing a licence for use of its members' copyrighted works, such as those contained in Meltwater News.
This case started its judicial journey in November 2010, when the High Court held that end users required an NLA licence to receive and view Meltwater News, as this was not caught by the exception under Article 5(1) of the Copyright Directive. This decision was appealed to the Court of Appeal, which upheld the High Court decision and dismissed the appeal. The PRCA appealed to the Supreme Court.
It was accepted (from previous decisions) that an NLA licence was required to view Meltwater News when received by email, as this constituted reproduction of copyrighted work on the user's computer that remained until the user chose to delete it. However, the question before the Supreme Court was whether an NLA licence was required to view Meltwater News on Meltwater's website.
Browsing a web page (without copying or downloading) creates temporary copies on the computer screen and in the internet cache on the hard disk of a computer. In the ordinary course, these cached copies will be automatically overwritten by the computer.
The PRCA argued that the copies created when browsing are "transient or incidental and an integral and essential part of a technological process". Therefore, browsing falls under Article 5(1), providing a defence against copyright infringement. The NLA argued that cached material is not temporary or transient, because it is possible for the user to close down the computer, keeping the material in the cache indefinitely until the browser is used again. Furthermore, the copy on the computer screen would remain until the user chose to terminate the session.
The Supreme Court acknowledged that its decision on the 'browsing defence' will affect millions of non-commercial internet users across Europe who could unwittingly commit copyright infringement by browsing content online without an NLA licence or the consent of the copyright owner. In light of these far-reaching implications, the Supreme Court has referred the question of whether browsing satisfies the requirements of Article 5(1) of the Copyright Directive to the ECJ.
Subject to the ECJ reference and contrary to the decisions of the lower courts, it was the Supreme Court's view that browsing is caught by the browsing defence for the following reasons:
- The copies are temporary, meaning that storage and deletion are automatic consequences of the initiation or termination of the process.
- The copies are transient or incidental to the technological process.
- The copies are created as an integral and necessary part of the technological process, meaning that the computer could not function effectively without the copies being made.
- Use of the material is lawful, but viewing the copies is not contrary to any applicable laws, regardless of the copyright owner's consent.
- There is no "independent economic significance" to making the temporary copies, meaning that the copies have no additional value to that of receiving or viewing the material.
The Supreme Court has opined, contrary to the earlier High Court and Court of Appeal decisions, that there is a defence of browsing under Article 5(1) and users thus needed a licence to view Meltwater News on Meltwater's website. However, the Supreme Court pointed out that companies providing news monitoring services would nevertheless still be obliged to obtain a licence in order to upload copyrighted material on their websites or make non-temporary copies of it in some other way.
The Supreme Court has taken what many consider to be a common-sense and practical approach and it is anticipated that the ECJ will come to similar conclusion.
For further information on this topic please contact Clive Thorne or Nicole Jahanshahi at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (firstname.lastname@example.org or email@example.com).
(1) Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd  UKSC 18, April 17 2013.
(2) Case C-5/08, Infopaq International A/S v Danske Dagblades Forening  FSR 495 Para 54.
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