After much anticipation, the Court of Justice of the European Union (the “CJEU”) has handed down a judgment confirming that Internet browsing does not infringe copyright; the common sense approach to the issue.
Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others
An association of public relations professionals known as PRCA use a media service to view press articles published on the Internet, which are provided by the group of companies, Meltwater. Meltwater monitor a wide range of websites and use a program to create an index of articles using keywords. Customers such as PRCA would then select certain search terms and Meltwater would provide a news report with every article falling within those terms. The report can be accessed via an email sent through to the customer by Meltwater or through Meltwater’s website.The Newspaper Licensing Agency (NLA), a body set up to licence newspaper content, argued that Meltwater and PRCA were infringing copyright through the provision and use of the media service without authorisation from the copyright holders of the press articles. Despite copyright holders providing their authorisation in the first place for certain publishers to reproduce their works, NLA argued that Meltwater’s media service was a further reproduction of those articles for which they had no permission.
Meltwater entered into a web database licence as a result of NLA’s objections, however PRCA maintained that a licence was not necessary.
Courts at First Instance
Both the High Court and the Court of Appeal held that the members of PRCA needed either a licence or NLA consent to use Meltwater’s media service. PRCA appealed this finding to the Supreme Court arguing in particular that if its members were only viewing the reports provided by Meltwater, no licence was required. The NLA maintained that viewing the reports created a reproduction of the articles on the user’s computer screen and on their hard drive through the creation of a cached copy, falling within the prohibitions in the Copyright Directive (2001/29/EC) (“the Directive”).
Article 2 of the Directive provides that member states can prohibit any direct or indirect, temporary or permanent reproduction, by any means, and in any form, in whole or in part of relevant works.
The exception to this is contained within Article 5(1) of the Directive, which states that a temporary reproduction referred to in Article 2 will be exempt from that Article if: (1) it is transient or incidental and an integral and essential part of a technological process; (2) its sole purpose is to enable either:
- a transmission in a network between third parties by an intermediary; or
- a lawful use;
and (3) it has no independent economic significance.
Article 5(5) goes on to state that this exemption can only apply in special cases, which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights-holder.
The referring Court had already held that the copies made on screen were part of the automatic technological process of browsing the Internet and retained only for the duration that the user was viewing the articles; the copies being essential to viewing the website. It went on to find that cached copies made on the computer’s hard disk are replaced by other content after a certain time and not retained, hence they are merely incidental to the main purpose of viewing a website and satisfy Article 5(1).
The Supreme Court was left with the question of whether the copies were temporary, transient or incidental and an integral and essential part of the technological process within the meaning of Article 5(1). The decision was made to refer the question to the CJEU.
The CJEU Judgment
- The copies were held to be temporary as a result of them being deleted the moment the Internet user left the website, or in the case of the cached copies, after a certain period of time;
- Copies, both on screen and cached, are created and deleted entirely as a result of the technological process of viewing the website without which the Internet would not function correctly or efficiently;
- The CJEU referred to the decision in Infopaq, which held that to be transient, an act must be limited to the duration necessary for the process to work properly and deleted automatically. However, the CJEU stated that, contrary to the argument put forward by the NLA, the on screen copy remained in existence as long as the browser remained open and the requirement for human intervention to close the site and delete the copy did not mean that the copy was open longer than necessary; and
- The cached copies could not be created by the user outside of the technological process and so were held to be incidental as they neither existed independently of, nor had a purpose independent of the technological process of browsing the Internet.
In relation to the further condition in Article 5(5), the CJEU said that browsing the internet would fall within the requirement of a “special case” as the copies were created for the sole purpose of viewing websites. By viewing the copies, there was no prejudice to the copyright holders’ legitimate interests as the works were made available by the website publishers, who themselves had obtained authorisation for the use of the press articles. Therefore there was no conflict as viewing the articles on a website was a normal exploitation of those works.
By agreeing with the Supreme Court, the CJEU has confirmed that the public are free to use the Internet without fear of infringing copyright whilst browsing on a website. The implication of any judgment other than this could have been catastrophic possibly seeing millions of Internet users incurring civil liability from the holders of copyright.
Following the judgment there still appears to be an open issue which has not been addressed. In particular, what would the situation be if a publisher had published without authority from the copyright holder? Would this mean that the Internet user browsing the website could be liable for copyright infringement, notwithstanding the fact that the user would have no idea if the publisher had obtained authorisation to publish? If that publisher had indeed failed to obtain the consent of the copyright holder, arguably the conditions in Article 5(5) would not be satisfied as the copies may be deemed to prejudice the legitimate interests of those copyright holders.
Thankfully however, the CJEU seems to have accepted the common sense approach that material freely available on the Internet, which has been reproduced with the authorisation of the relevant copyright holder should be available to browse without risk of infringement of any copyright.