The UK Supreme Court delivered its judgment in the copyright protection case NLA v Meltwater today.
In this case the appellants scan newspaper websites for articles containing search words which its end-users have given it. The end-users then receive search results, via email or by viewing them on the appellant's website. The first respondent sought a declaration on whether the end-users of the appellant's service require a licence or consent in order to lawfully receive and/or use the service. The High Court and Court of Appeal held that they did need a licence. This was based largely on the ground that making copies, however temporary, in the end-user’s computer while browsing was generated by the user’s voluntary decision to access the webpage. Due to the international dimension of this appeal and possible implications for internet users on an EU-wide scale the Court, while expressing its own view on the matter, stated that it must first seek clarification from the CJEU.
The question arose as to whether the copies created when accessing a webpage are exempt from copyright protection by reason of the temporary copies exception provided by s.28A of the Copyright, Designs and Patents Act 1988 which gives effect to the Directive 2001/29/EC ("the Copyright Directive"). The Court found that cache copies are stored automatically by browsing and deleted automatically by a lapse of time coupled with continuing browser use, rather than being dependent on discretionary human intervention. The Court therefore felt that the exception in Article 5.1 of the Copyright Directive applied to temporary copies generated by an end-user of the internet, and as such, a licence should not be required.
The Court will now refer for a preliminary ruling to the CJEU the question of whether the requirements of Article 5.1 of the Copyright Directive are satisfied and in particular, whether requirements that acts of reproduction should be (i) temporary; (ii) transient or incidental; and (iii) an integral and essential part of the technological process, are satisfied, having regard in particular to the fact that copies may remain in the cache after the browsing session that generated them has ended until overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the end-user.