You May Read This: Browsing Internet Articles Is Not Going To Infringe Copyright (At Least In Europe)
Monday 16 June 2014 @ 11.07 a.m. | IP & Media | Legal Research
The Court of Justice of the European Union (the "CJEU") has handed down a ruling confirming that browsing the internet and the resulting creation of "on-screen" and "cached" copies does not amount to copyright infringement and does not require a license. To many people, the idea that merely viewing a webpage could be infringing someone’s copyright would be absurd, and the case is another example of growing legal questions that demonstrates the gap between how people use technology, and the extent to which technology has actually been dealt with by legislation and case law.
Facts
The decision, Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others, (Case C-360/13) is part of the long running “Meltwater Case”. Meltwater was a media monitoring service which produced reports on internet press articles. The Newspaper Licensing Agency (NLA) sued Meltwater in the United Kingdom, alleging that Meltwater and its customers needed a license to use the service. Meltwater accepted that it needed a licence, but the Public Relations Consultants Association (PRCA), whose members used the service, argued that receiving the reports did not require a licence. The NLA maintained that "cached" copies of the article that were automatically made to a user’s hard disk constituted “reproductions” that fell outside the temporary exemption in Article 5(1) of Directive 2001/29:
1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental, which are 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) lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.
The UK Supreme Court believed that copies made in the course of ordinary web browsing would satisfy the temporary exception. However, they requested the case be heard by the CJEU “for the purpose of ensuring the uniform application of EU law throughout the territory of the European Union” [at 19].
Decision
The CJEU [at 22] observed that Article 5(1) required five conditions for an act of reproduction to be exempted:
- it is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
- it has no independent economic significance.
The CJEU found that ‘cached’ websites and on-screen copies are clearly satisfied all the necessary criteria. They found there was:
“no justification for requiring internet users to obtain another authorisation allowing them to avail themselves of the same communication as that already authorised by the copyright holder in question” [at 59].
An article from Herbert Smith Freehills notes that it is important to remember:
“The CJEU decision determines the position only for browsing. It does not therefore give internet users any comfort that printing or downloading material, or storing it on an email, is equally permitted.”
Although the decision is a European one, Australia also has exceptions for temporary reproductions “made in the course of communication” and “as part of a technical process of use” in sections 43A and 43B of the Copyright Act 1968 (Cth).
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