The Court of Justice for the European Union (“CJEU”), the supreme court for matters of European Union law, has confirmed that viewing copyright material on a web-browser, and thereby reproducing it both on-screen and in an internet cache, will not infringe copyright.
The decision, handed down in case C-360/13 Public Relations Consultants Association Ltd (“PRCA”) v Newspaper Licensing Agency Ltd (“NLA”) and others, was provided in answer to a reference from the UK Supreme Court (“UKSC”) and related to the use of an online media monitoring system offered by the Meltwater group.
Meltwater monitors media, such as newspapers, and provides reports to its customers based on key words. The NLA argued that Meltwater and its customers (including the PRCA) required a licence from copyright holders (the NLA) where the source material was protected by copyright. Meltwater itself agreed to obtain a licence, however the PRCA disagreed that this was necessary.
The UK Court of Appeal found in favour of the NLA and ruled that the PRCA did indeed need a licence from the NLA to access Meltwater’s reports. The PRCA appealed and the matter came before the UKSC, which held the opinion that internet browsing was temporary reproduction exempt from copyright infringement. However, in light of the importance of the issue and the benefit to be had by establishing a uniform approach across Europe, the UKSC chose to refer the matter to the CJEU and asked whether viewing a website on an internet browser (without downloading or printing content) could infringe European copyright law (further detail on the UKSC’s decision can be found in this firm’s previous article here).
Reproduction of copyright material
It is not disputed that viewing material via a website browser involves reproduction which, according to Article 2 of Directive 2001/29 (the “Copyright Directive”), authors have the exclusive right to authorise or prohibit. However, where the reproduction fulfils the requirements of Articles 5(1) and 5(5), it will be exempt from this requirement. The PRCA argued that web-browsing was one such exception.
There were two reproductions created when someone views an internet webpage, the first being the copy reproduced on-screen and the second being the copy within the device’s internet cache. To be exempt under Article 5(1) the reproduction must be:
- integral and essential as a part of the technological process;
- for the sole purpose of enabling a transmission between third parties by an intermediary; and
- of no independent economic significance
The UKSC only asked the CJEU to rule on the first three points set out above, as the fourth and fifth had already been decided on the facts. The CJEU held as follows:
- The first condition (that the reproduction was temporary) was satisfied as on-screen copies were immediately deleted when the user navigated away from the page, and the reproductions in the cache would typically be automatically deleted and replaced by other data being cached.
- The second condition (that the reproduction was transient and incidental) was satisfied as the reproductions arose as a result of an automated technological process and existed only for as long as that process was in operation. The reproductions were also incidental as they could not exist independently of the technical process.
- The reproductions also fulfilled the third condition of Article 5(1) (that the reproductions were integral and essential as a part of the technological process). Both reproductions were part of the technological process which occurs when a website is viewed (the CJEU said it was ‘irrelevant’ that a human triggered that process by navigating to the website, and added that the possibility of additional human interaction with the process did not prevent it falling within the definition). Further, both reproductions were an essential part of the process.
- The final requirement was that exemption was consistent with Article 5(5), which required that the reproductions exempt under Article 5(1) did “not conflict with a normal exploitation of the work or other subject matter” or “unreasonably prejudice the legitimate interests of the rightholder”. The CJEU ruled that the reproductions did not interfere with the rightholder’s normal exploitation and that, because the original publisher of the online material was required to obtain a licence, the rightholder’s legitimate interests were not unfairly prejudiced.
As a consequence, the unauthorised reproduction of copyright material on-screen and in an internet cache when viewing internet pages was held not to be a breach of copyright.
The CJEU’s decision takes a sensible and reasonable approach to the interpretation of the Copyright Decision. The UKSC’s judgment of last year was based on the CJEU’s previous decisions and so this decision does not come as a surprise. Nonetheless, had the Court decided otherwise it would have resulted in potentially millions of internet users frequently breaching copyright law, the enforcement of which would have been difficult if not impossible in practice.
It should be noted that the fourth and fifth requirements of the exception under Article 5(1) of the Copyright Directive did not form part of the reference to the CJEU, as the UKSC had been in no doubt that these requirements were met, and therefore fall outside the scope of the judgment.
The full text of the CJEU’s decision can be found on the Curia website.