On 17 April 2013, the Supreme Court of England and Wales provisionally held in Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others  UKSC 18 that internet browsing of copyrighted literary material does not amount to infringement by virtue of Article 5(1) of the Copyright Directive. The Supreme Court has referred the issue to the Court of Justice of the European Union (CJEU).
The Public Relations Consultants Association (PRCA), the appellant, represents PR professionals that contract the services of Meltwater, a provider of media-monitoring services. Meltwater emails to PRCA’s members and makes available on its website, reports setting out the results of its searches, detailing headlines, opening words and hyperlinks to news articles published by members of the respondent, the Newspaper Licensing Agency (NLA), a licensing agency that manages the IP rights of its members.
Article 2(a) of the Copyright Directive (the Directive) confers on rightholders "the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction of by any means and in any form, in whole or in part […] their works."
Article 5(1) of the Directive exempts from this reproduction right:
"temporary acts of reproduction [...], which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use, of a work […], and which have no independent economic significance."
In November 2010, a judgment from Proudman J in the High Court (supported by the Court of Appeal) effectively held that PRCA’s members, as end-users of Meltwater’s services, would require licences from NLA to view copyrighted content within the reports made available to them. The reasoning given was that the emailed reports were not temporary and the website reports constituted temporary copies of protected material stored in the cache and made available on the screen of the end user’s computer, which was not part of the technological process but at the end user’s volition. It therefore constituted a breach of NLA’s rights under Article 2(a).
Whilst it was agreed that PRCA’s members required licences in order to view copyrighted content received via email, PRCA appealed in the present case to the Supreme Court to determine whether or not its members needed licences for the website reports only, given recent decisions on the interpretation of Article 5(1) of the Directive.
The Supreme Court gave a provisional view in its judgment that the website reports benefit from the Article 5(1) exemption and, as such, PRCA’s clients did not require consent from NLA. The reasoning given for this view included, inter alia:
- It had never been an infringement to read hard-copy copyrighted material and that the purpose of Article 5(1) was to provide similar protection in respect of soft-copy content.
- The temporary copies made in the cache and on the screen were merely incidental to the use of the computer to view the material and an essential part of the technology involved.
- The Directive makes explicit reference to browsing and caching in recital 33, which applies to end-users viewing web pages.
- "Lawful use" includes browsing copyrighted material without the consent of the rightholder, provided it is not restricted by legislation.
It was conceded, however, that if the client were to download or print the report, this would constitute copyright infringement.
The Supreme Court decided to refer the issue to the CJEU on the basis that the interpretation of Article 5(1) will carry a transnational dimension and has implications for millions of internet-users within the European Union. As such it is a matter of general interest for the uniform application of EU law.
The decision from the CJEU will affect anyone who browses or makes content available on the internet, both commercial and non-commercial users alike. If it is held that PRCA requires individual licences for its members, this will effectively open the flood gates to millions of people unintentionally incurring civil liability.
Should the CJEU agree with the Supreme Court, this will mean that, whereas Meltwater would require consent from NLA, end users such as PRCA will not, provided reports are only viewed via Meltwater’s website and not downloaded or printed. This would not preclude NLA from pursuing pirates under the Directive.
As a practical consequence, if the Supreme Court’s view is upheld, it will likely result in higher licence costs for Meltwater, given that NLA currently supposes the end-users will require licences. The Court sees a single higher licence as being more appropriate that many smaller licences. This cost may, in turn be passed on to Meltwater’s clients, in order to mitigate its higher licensing costs. However, from a practical, commercial perspective, it may be the case that PRCA’s members require more "permanent" copies of the reports, in which case they will still require a licence from NLA.