The Court of Justice of the European Union (CJEU) has today confirmed that browsing the internet (without downloading or printing) does not require permission of the copyright owner because browsing per se falls under the temporary copying exemption under Article 5.1 of the Information Society Directive (2001/29/EC) (implemented via Section 28A of the Copyright, Designs and Patents Act 1988 (CDPA)).
The CJEU decision in the Meltwater case (Public Relations Consultants Associations Ltd v The Newspaper Licensing Agency Ltd and others) Case C-360/13 confirms the views expressed by the UK Supreme Court in its provisional decision in the case in April 2013, that there is no place for regulating casual browsing on the internet through enforcing copyright.
- This decision confirms that those who browse the internet are not at risk of any unintentional liability for copyright infringement simply by through the act of viewing websites. For those involved in the administration of rights, it confirms that the operation of the internet, as far as browsing is concerned, is not dependent on wide ranging implied licences.
- The CJEU decision determines the position only for browsing. It does not therefore give internet users any comfort that printing or downloading material, or storing it on an email, is equally permitted.
- The CJEU relied on the fact that when material is published on the internet, the website publisher is required to obtain the copyright owners permission. As such, the proviso in Article 5.5 that any temporary copying exemption should not conflict with normal exploitation of the work and not unreasonably prejudice the legitimate interests of the rights holders was also met for browsing. This will inevitably throw the focus of copyright owners back on to the need to police the posting of their copyright works on the internet in the first place.
The CJEU decision arose from a reference made by the UK Supreme Court in July 2013 following its provisional decision an appeal brought by the Public Relations Consultants Association (PRCA) in the long running Meltwater case. The case was initially brought by the Newspaper Licensing Agency against Meltwater News, a media monitoring organisation providing internet links to its customers which grouped together relevant news items for them to read. The NLA (the collecting society for newspapers) argued that both Meltwater and its customers needed a licence to deliver and receive the service. In the course of the litigation, Meltwater accepted that it needed a licence and therefore dropped out of the litigation. However the NLA maintained that Meltwater's customers also needed licences. The PRCA (an association of public relations professionals) then took up the fight on behalf of its members (many of whom were Meltwater customers) to argue that no licence was required for the mere viewing of information on a website.
The UK Court of Appeal held that the end users did need a licence to view the material on the internet. On appeal, the Supreme Court disagreed, and held that no such licence was necessary as the acts involved in viewing material on a website could fall under the temporary coping exemption under Article 5.1 of the Information Society Directive 2001/29/EC (Section 28A of the CDPA) because they met the 5 criteria laid down in that article. However, as the court recognised this was an issue "with a transnational dimension" and implications for millions of internet users across the EU, it made a reference to the CJEU seeking confirmation of the interpretation of Article 5.1.
For more on the decision of the Supreme Court see our IP bulletin of 17 April 2013 (which links to IP Bulletins on both the Court of Appeal and High Court decisions).
Article 5.1 of Directive 2001/29 provides an exemption to the reproduction right for acts of reproduction that meet the relevant criteria. The criteria are that an act of reproduction should be temporary, in that it is transient or incidental, is an integral part and essential part of a technological process, its sole purpose is to enable a transmission or lawful use of a work to be made and it has no independent economic significance. The UK Supreme Court considered that the last 2 of these requirements (sole purpose and no independent economic significance) were met on the circumstances of the Meltwater case. However, it required guidance on whether the first 3 criteria also applied. The formulation of the question referred was careful to prescribe the exact circumstances under consideration, so the CJEU ruling must be viewed in that context.
The question referred to the CJEU was as follows:
In circumstances where
- An end user views a web-page without downloading, printing or otherwise setting out to make a copy of it;
- Copies of that web-page are automatically made on screen and in the internet cache on the end-user's hard disk;
- The creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;
- The screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;
- The cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the operation of the computer;
- And the copies are retained for no longer than the ordinary processes associated with internet use referred to above;
Are such copies (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC?
The CJEU used the simplified procedure for this case, so there was no Advocate General's decision.
The CJEU Decision
The CJEU summarised the question referred as whether on-screen copies and cached copies made by an end-user when viewing a website satisfy the first 3 conditions of Article 5.1 and if so, whether the copies can be made without the authorisation of copyright holders.
The CJEU noted that although Article 5.1 is a derogation from the general rule and must therefore be interpreted strictly, it must also allow for the development and operation of new technologies and safeguard a fair balance between rights holders and users of technology.
Condition 1- Are the copies temporary?
The CJEU had no difficulty in finding that the copies were temporary, as the on-screen copies were deleted when the internet user moves away from the page, and the cached copies were replaced by other content after a certain time.
Condition 2 – Are the copies transient or incidental?
In the context of article 5.1, transient means limited to what is necessary for the technological process to work properly, providing that the copy is deleted automatically once its function has been completed (Infopaq C2009/465). The CJEU rejected the NLA's argument that the copies were not transient because they depended on human intervention to navigate away from the page. The on-screen copies were also incidental, regardless of the fact that copies on screen were displayed as long as the browser window was kept open. The cached copies were incidental to the technological process, as they could not be created outside the process of browsing. Having found the cached copies were incidental, the court did not need to find that they were transient as well.
Condition 3 – Are the acts of reproduction an integral and essential part of a technological process?
The CJEU stressed that to fall under the condition, both parts must apply. The first part of the condition required that the acts of reproduction should be carried out entirely in the context of the implementation of a technological process. This was satisfied as the creation and deletion of both the on screen and cached copies took place in the technological process for viewing websites. It was irrelevant at what stage in the technological process the acts of reproduction were carried out, and the condition would be met if the acts were to initiate or terminate the process (as with the on-screen copies). In addition, human intervention in the technological process was not precluded, so the manual activation or completion of the technological process did not take it outside the scope of the condition.
The second part of the condition required that the completion of the acts of reproduction was necessary such that the technological process wouldn’t function without it. The CJEU addressed the issue of whether a cache was necessary for the purposes of browsing the internet. It concluded that as the internet would not function effectively with large volumes of data without caching, this meant caching was necessary. Both elements of the condition were met by both on-screen and caching copies.
The CJEU made no comment on the UK Supreme Court's assertions that the 4th and 5th conditions of Article 5.1 were also met.
Having dealt with the issues on the specific grounds of Article 5.1 raised in the question as referred, the CJEU then went on to look at whether the conditions in Article 5.5 were also met. Article 5.5 provides that temporary copies only form an exemption "in special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holders".
The CJEU asserted that the on screen and cached copies did constitute a special case because they were created only for the purpose of viewing websites. In addition, the copies did not unreasonably prejudice the rights of copyright holders because before making works available on the internet, the publishers of websites were required to obtain authorisation of the copyright holders concerned (Article 3.1 Directive 2001/29) as the making available was an act restricted by copyright, being a communication to the public. The legitimate interests of the copyright holders concerned were therefore properly safeguarded. There was no justification for requiring internet users to obtain another authorisation to use the same communication that had already been authorised.
Finally, the CJEU held that the creation of the on-screen and cached copies did not conflict with the normal exploitation of the copyright works, as viewing on a website was the means by which internet users availed themselves of the communication to the public made by the publisher of the website. The CJEU therefore concluded that the viewing of on-screen and cached copies as part of browsing the internet met the requirements of Article 5.5.