In the case of the PRCA v the NLA, relating to the Meltwater online media monitoring service, the Supreme Court has referred to the CJEU the question of whether normal internet use can amount to copyright infringement by a user. The Supreme Court’s preliminary view is that internet browsing should not give rise to liability of a web-user.

The background to the case is that, in 2010, the NLA took action against Meltwater and the PRCA relating to Meltwater’s news monitoring service. Meltwater monitors a wide range of news websites. It uses special software to “read” the sites and create an index of words appearing in the articles. It then creates customised reports for customers linking to recent articles in which certain key words appear. The High Court held that the reports (including the newspaper headlines and opening text of the articles) were protected by copyright and that copyright was infringed by the end-users when they received the reports by email or accessed the report on Meltwater’s website, because a copy would be made on the user’s computer.

 Meltwater argued that end users should be able to rely on the exception for making temporary copies, which are an ‘integral and essential part of the technological process’. However Proudman J decided that the copy generated by the user was a result of the user’s own voluntary decision to access the web-page and therefore it wasn’t an ‘essential and integral part of the technological process’. The Court of Appeal agreed. Meltwater and PRCA then appealed to the Supreme Court on the question of whether it was right that end-users require a licence to view the report on Meltwater’s website.

The Supreme Court has referred the question to the CJEU of whether temporary copies of works created when browsing the internet satisfy the requirements of the temporary copying exception, that is, whether they are temporary, transient or incidental and an essential part of the technological process. The Supreme Court’s provisional view is that it cannot be right that merely viewing, rather than downloading a copy could amount to copyright infringement, otherwise  millions of users of the internet could be liable. However, given the appeal’s transnational dimension and potential implications for internet users across Europe it has referred the question to the CJEU.

It is not surprising that the Supreme Court holds this view, given that it is not copyright infringement simply to view or read an infringing copy of a film or book. However, customers of Meltwater will still require an end user licence to receive reports and hyper-links by email. The question for the CJEU is simply whether customers need a licence to view the material on Meltwater’s website. It seems likely, particularly following the CJEU’s findings in Murphy v Media Protection Services Limited (where the CJEU found that temporary acts of reproduction of works within the memory of a satellite decoder fell within the exception) that the CJEU will take the same view.