The Court of Justice of the European Union (CJEU) has decided that on-screen and cached copies made by an internet user in the course of viewing a website can be made without the authorisation of a copyright holder.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 (the Copyright Directive) harmonises certain aspects of copyright and related rights in the European Union (EU) and provides that temporary acts of reproduction, which are transient or incidental and an integral and essential part of a technological process, and which have no independent economic significance are exempted from copyright infringement.
This provision of the Copyright Directive was transposed into the national law of the United Kingdom by Section 28A of the Copyright, Designs and Patents Act (CDPA) 1988. The Supreme Court of the UK referred a question to the CJEU as to whether internet users who view websites on their computers without downloading or printing them out are committing infringements of copyright by reason of the creation of on-screen and cached copies, unless they have the authorisation of the rights holders to make such copies.
In the dispute before the Supreme Court, Public Relations Consultants Association Ltd claimed that its members do not need authorisation from rights holders when they confine themselves to viewing a media monitoring service on the provider’s website. Newspaper Licensing Agency Ltd contended that activity required the authorisation of the copyright holders, insofar as viewing the website leads to copies being made on the user’s computer screen and in the internet cache of that computer’s hard disk.
The Supreme Court came to the decision that the creation of on-screen and cached copies is indispensable to the correct and efficient operation of internet browsing, and so concluded that on-screen and cached copies satisfy certain conditions laid down in the exemptions in the Copyright Directive; and asked the CJEU whether the on-screen copies and the cached copies are temporary, transient or incidental in nature, and constitute an integral and essential part of a technological process, and, if so, whether those copies may be made without the authorisation of the copyright holders.
The CJEU concluded that, because the on-screen copies are deleted when the internet user moves away from the website; and the cached copies are normally automatically replaced by other content after a certain time, those copies are temporary in nature. The Court also found that that the on-screen and cached copies are an integral part of the technological process of internet browsing and the process cannot function correctly and efficiently without these copies. Together, it was decided that copies on the user’s computer screen and in the internet cache of that computer’s hard disk can be made without the authorisation of the copyright holders.
Internet users should remember that, in order for copies made in the normal course of internet browsing to be exempt from copyright infringement, the copies must be temporary; transient or incidental; an integral and essential part of a technological process; have a sole purpose to enable a transmission in a network (or a lawful use) of a work or other subject-matter, and have no independent economic significance. Deviations from these criteria, including long-term storage by copying to outside the cache of a hard disk could constitute copyright infringement.