This question is a feature of the latest instalment of a long running case, PRCA v NLA (formerly known as NLA v Meltwater News), a case which highlights the challenges of adapting copyright law to the online world.
The story starts in 2009 in the Danish case of Infopaq. Infopaq ran a media-monitoring service in which extracts from newspaper articles were temporarily copied and stored as part of its data capture process in the course of compiling media reports for its customers. The extracts were short: some were as few as 11 words. Infopaq was sued for copyright infringement by an association representing Danish newspaper publishers.
That case eventually reached the European Court of Justice (ECJ, since renamed as the Court of Justice of the EU). The ECJ ruled that Infopaq’s activities potentially infringed copyright. The ruling was made in the context of EU derived laws which are couched in terms of the right to prohibit “direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or part, … of [copyright] works”.
In NLA v Meltwater, the Newspaper Licensing Agency (NLA) sued Meltwater News for copyright infringement on a similar basis. Meltwater also ran a media-monitoring service involving the production of newspaper extracts containing search terms specified by its customers. Meltwater reproduced the title, opening words and a short extract of each newspaper article, as well as a hyperlink to the article. Its customers were emailed the extracts or could alternatively view them via Meltwater’s website.
Both the High Court and the Court of Appeal followed the Infopaq decision and ruled that Meltwater’s activities constituted copyright infringement even though the extracts themselves were very short. Meltwater had no alternative but to acquire a licence from the NLA for its business.
However, one of the other defendants, the Public Relations Consultants Association (PRCA), which represents the interests of many of Meltwater’s customers, appealed to the Supreme Court on one point. The PRCA argued that, even if the emailing of extracts did infringe copyright, the act of merely making them available online for viewing on Meltwater’s website did not.
This raises an interesting point: does internet browsing constitute copyright infringement? It might seem obvious from a practical standpoint that it should not do.
There is indeed a defence available under copyright law for temporary acts of reproduction which are transient and incidental and are an integral and essential part of a technological process whose sole purpose is to enable a lawful use of a copyright work to be made. The Supreme Court thought that internet browsing was a 'lawful use' for these purposes, even where the content is being viewed without the knowledge of the copyright owner (which of course is how the internet works).
However, given the significance of the issue and the millions of internet users who would be affected by an adverse finding, the Supreme Court has referred this question to the Court of Justice of the EU (CJEU). One hopes that the CJEU will come to the same conclusion!