In a much anticipated judgment issued on 5 June 2014, the Court of Justice of the European Union ("CJEU") in Case C-360/13 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and others held that the reproduction of copyright protected content on users’ screens and cached on users’ computers while web-browsing is not copyright infringement. The CJEU’s decision had the potential to affect the way the Internet has effectively operated for many years. Web-browsing by Internet users invariably requires the creation of on-screen and cached copies and so the ruling handed down this morning by the CJEU is a welcome development for Internet users. In fact the CJEU highlighted the importance of these copies in facilitating effective web-browsing by noting that “without the creation of such copies, the process used for viewing websites would be considerably less efficient and would not be able to function properly.”
The business impact of the decision is as follows:
- The creation of on-screen and cached copies of copyright protected content on a user’s computer while browsing the Internet are considered temporary, transient, incidental, integral and essential to accessing content online and therefore are not acts of copyright infringement; and
- Copyright owners cannot require Internet users to obtain further authorisation for such copies or more particularly seek licensing revenue from such activity.
The reference was made by the UK Supreme Court. The background was an appeal by Public Relations Consultants Association Ltd (“PRCA”) against an earlier court decision that a licence was required by PRCA’s members to view media monitoring reports which were made available via Meltwater’s website. Meltwater essentially provided an online commercial media-monitoring service. Monitoring reports which were created by Meltwater were either e-mailed to PRCA’s members or the reports could be accessed through an online facility on Meltwater's website. The reports that were accessed by end-users of the Meltwater website would be temporarily retained on the end-user's screen or in the Internet cache on the user’s computer and the central issue in the case was whether browsing such information in this manner constituted infringement of copyright or whether certain defences would not apply. Despite having reached a decision on the facts, the UK Supreme Court reserved final judgment pending a decision on the issue from the CJEU.
The UK Supreme Court essentially asked the CJEU whether a defence to copyright infringement under Article 5 of Directive 2001/29/EC on exceptions and limitations to copyright infringement applied to such user copies where the defence required that the relevant reproductions must be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process involved.
In relation to the first condition - that the reproduction be ‘temporary’, the CJEU held that (i) the on-screen copies are deleted when the Internet user moves away from the website viewed and (ii) the cached copies are normally automatically replaced by other content after a certain time. On this basis, the CJEU held that the copies are temporary in nature for the purposes of the defence.
In relation to the second condition - that the reproduction be ‘transient or incidental’, the CJEU held that the on-screen copies must be regarded as ‘transient’ as the period during which the on-screen copies remain in existence is limited to what is necessary for the proper functioning of the technological process concerned. The CJEU also held that as the on-screen copies are deleted by the computer at the moment the user moves away from the website, and do not exist independently of the technical process, they must also be considered incidental. Regarding the cached copies, the CJEU also held that the cached copies neither exist independently of, nor have a purpose independent of, the technological process at issue so they must be regarded as ‘incidental’.
In relation to the third condition - that the reproduction be an integral and essential part of the technological process, the CJEU noted that Article 5(1) of Directive 2001/29 does not preclude the technological process from involving human intervention and, in particular, from being activated or completed manually. On this basis, the CJEU was satisfied that the creation of the on-screen copies and the cached copies was integral as it was carried out entirely in the context of the implementation of the technological process. The CJEU further held that without the cached copies, the Internet would be unable to cope with current volumes of data transmitted online and that the on-screen copies were required by the technological process for it to function correctly and efficiently. On this basis, the on-screen copies and the cached copies were also held to be an essential part of the technological process.
Finally, the CJEU noted that in order to rely on the defence provided by Article 5(1) of Directive 2001/29, the conditions in Article 5(5) must also be satisfied. Article 5(5) provides that the temporary reproduction of the copyright works would only be exempt (i) in certain special cases (ii) which do not conflict with a normal exploitation of the work and (iii) do not reasonably prejudice the legitimate interests of the rights holder. The CJEU held that since the on-screen copies and the cached copies are created only for the purpose of viewing websites; they constitute a special case for the purposes of Article 5(5) of Directive 2001/29. The CJEU also held that the reproduction in question did not conflict with a normal exploitation of the works and that the legitimate interests of the copyright holder were sufficiently safeguarded. Thus, the three-stage test laid down by Article 5(5) is satisfied.
While the UK Supreme Court made the reference, Lord Sumption had argued that this activity should not be considered infringement as it had never been an infringement for a person merely to view or read an infringing article in physical form. Lord Sumption also expressed it as an unacceptable result that Internet users could unintentionally attract civil liability for coming upon a webpage containing copyright protected material in the course of browsing. The decision of the CJEU today has ensured that the viewing of material on the Internet is treated the same way as viewing it in physical form.