On 5 June 2014, the European Court of Justice, Fourth Chamber, issued a preliminary ruling concerning the interpretation of Article 5 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. The ruling is about the requirement to obtain authorisation from the copyright holders for viewing websites where this involves copies of those sites being made on the user’s computer screen and in the Internet cache of the computer’s hard disk.
The preliminary ruling request was made by the Supreme Court of the United Kingdom in the proceedings between the Public Relations Consultants Association Ltd (the PRCA), an association of public relations professionals, and the Newspaper Licensing Agency Ltd (the NLA), a body set up by the publishers of newspapers in the United Kingdom for the purpose of providing collective licensing for newspaper content. The PRCA stated that its members do not require any authorisation from the copyright holders for consulting Meltwater’s website, a company that provides online media monitoring services for press articles published on the Internet. Not only was the NLA against, but the Judges of first and second instance also dissented, holding that a licence or consent from the NLA is necessary in order to use Meltwater’s service. The PRCA then brought an appeal against that decision before the Supreme Court of the United Kingdom, which subsequently made the request for a preliminary ruling before the ECJ.
To be more precise, the ECJ is requested to evaluate if, in case of the mere consultation of websites, the creation of copies on the user’s computer screen and in the Internet cache of the computer’s hard disk can be considered an exception of copyright pursuant to Art. 5 of the abovementioned Directive. The Article set out a series of conditions (that must be interpreted strictly) that, if applicable, allow making copies without the authorisation of the copyright holder, as an exception of the general rule provided by Art. 2 of the same Directive, which recognises that the author has the right to authorise or prohibit any reproduction of his/her works.
Going into detail, in order to apply this exception, the copies must be temporary, transient or incidental and they have to form an integral and essential part of a technological process. Furthermore, their sole purpose has to be to enable a transmission in a network between third parties; they must also have no independent economic significance. The fifth paragraph of Art. 5 then specifies that “The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder”.
The Court, basing its considerations on the technical observations taken before by the referring court, closely examines the functions and the process through which the copies on the user’s computer screen and in the Internet cache of the computer’s hard disk are made. The result is that they fully respect each condition provided by Art. 5, from the temporary feature to the lack of prejudice for the legitimate interests of the right holder.
The forgone conclusion of the Court is that Article 5 of Directive 2001/29/EC must be interpreted “as meaning that the copies on the user’s computer screen and the copies in the Internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders”.