Internet Browsers rest easy—but the CJEU's answer to Meltwater was there all along

Ordinary end users who view copyright protected materials when browsing the internet can rest easy.

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In Public Relations Consultants Associations Ltd v Newspaper Licensing Agency and others: C-360/13, the Court of Justice of the European Union (CJEU) has delivered its decision in the long running Meltwater case on the remaining issue of whether copies of a webpage made on the screen and in the cache made by end users when browsing the internet fall within the ‘temporary copies’ exception of Directive 2001/29, art 5.1 (the InfoSoc Directive).

Meltwater—a very quick recap

The Meltwater group of companies, which includes the Meltwater media monitoring organisation (MMO,) provide a commercial media monitoring service called Meltwater News. The Public Relations Consultants Association (PRCA) accepted that its members required an end-user licence when their monitoring report was sent to them by email. A key issue in the High Court case was whether subscribers to Meltwater News required a licence from the Newspaper Licensing Agency (NLA) to access monitoring reports available on Meltwater’s website, without which they would infringe copyright (specifically the right of reproduction). The argument was that infringement would occur because when an internet user views a website on his or her computer, without downloading it, the technical processes involved require on-screen and cached copies to be made. The High Court and the Court of Appeal thought subscribers did require a licence.

The PRCA’s appeal to the Supreme Court was based on the InfoSoc Directive, art 5.1—that making temporary copies of a copyright work, satisfying various conditions, does not infringe copyright.

What was the background to this referral?

The take home point from the referral was that the Supreme Court disagreed with the High Court and Court of Appeal rulings that the InfoSoc Directive, art 5.1 did not apply. The Supreme Court based its decision on European case law from the decisions in Football Association Premier League Ltd and others v QC Leisure and others; Murphy v Media Protection Services Ltd: C-403/08 and C-429/08 [2012] All ER (EC) 629, and Infopaq Int A/S v Danske Dagblades Forening: C-302/10.

These cases had not been decided at the time the High Court and Court of Appeal cases were heard. Although clear in its decision, the Supreme Court made the preliminary reference because it recognised:

'The issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union.’ (para [38])

What questions did the Supreme Court refer to the CJEU?

In circumstances where:

  1. an end user views a web page without downloading, printing or otherwise setting out to make a copy of it

  2. copies of that web page are automatically made on screen and in the internet ‘cache’ on the end user's hard disk

  3. the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing

  4. the screen copy remains on screen until the end user moves away from the relevant web page, when it is automatically deleted by the normal operation of the computer

  5. the cached copy remains in the cache until it is overwritten by other material as the end user views further web pages, when it is automatically deleted by the normal operation of the computer, and

  6. the copies are retained for no longer than the ordinary processes associated with internet use referred to at (4) and (5) above continue

are such copies temporary, transient or incidental and an integral and essential part of the technological process within the meaning of the InfoSoc Directive, art 5.1?

What did the CJEU decide?

The CJEU decided that the InfoSoc Directive, art 5 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that:

  1. those copies must be temporary (on screen copies are deleted when the internet user moves away from the website viewed and cached copies are normally automatically replaced by other content after a certain time)

  2. they must be transient (the duration of the technological process used must be limited to what is necessary for that process to work properly and deletion must be automatic but can be preceded by human intervention)or incidental (ie must not exist independently or have an independent purpose of the technological process—while unlike screen copies, the cached copies do not satisfy the transience requirements they are considered to be incidental as they cannot be created outside of the technological process outlined) in nature, and

  3. that they must constitute an integral and essential part of a technological process (it didn’t matter that the process in question is activated by the internet user and is terminated by a temporary act of reproduction such as an on screen copy, the technical process is not precluded from involving human intervention—on-screen copies and cached copies are essential for facilitating browsing on the internet)

The conditions of the ‘three step test’ set-out in the InfoSoc Directive, art 5.5 (also a requirement) are also satisfied:

  1. since the on-screen copies and the cached copies are created only for the purpose of viewing websites, they constitute a special case

  2. the copies do not unreasonably prejudice the legitimate interests of those rights holders because the works are made available to internet users by the publishers of the websites—those publishers being required, under the InfoSoc Directive, art 3.1 to obtain authorisation from the copyright holders concerned, since that making available constitutes a communication to the public

  3. the creation of the on-screen copies and the cached copies does not conflict with a normal exploitation of the works—the viewing of websites by means of the technological process at issue represents a normal exploitation of the works which makes it possible for internet users to avail themselves of the communication to the public made by the publisher of the website concerned

Therefore, on screen and cached copies may be made without the authorisation of the copyright holders.

Was this all a bit of fuss and bother?

A bit. The ruling in this case was never going to have a huge impact on members of the public because most website operators want to you to browse the content on their websites (hence all of those adverts). Therefore, most of the browsing that goes on is done with permission under (an implied or express) licence. Further, the Meltwater group of companies operate commercially but most people who browse the internet do so for non-commercial reasons and would largely fall within copyright exceptions (permitted acts) or would be able to fulfil the requirements of defences available where copyright infringement has occurred.

MMOs may remodel their services by stopping the emails containing the monitoring reports and instead sending notification emails that the monitoring report is ready for viewing on the webpage. But, as mentioned in previous analyses, if end users do not need a licence to access MMO reports accessed via a web browser, the NLA will merely seek to change the MMOs licence fee model to recover that lost licence income (MMOs being required to operate under a licence was never in issue in the proceedings). So the contents of the managing director of NLA media access David Pugh’s blog post were of no surprise:

‘NLA will continue to work closely with Meltwater to supply them and their clients with appropriate licences for their use of publisher content. Negotiated commercial solutions which recognise and meet the needs of all parties are the way forward.’

Does this decision have any wider implications?

Following Svensson and others v Retriever Sverige AB: C-466/12 [2014] All ER (D) 123 (Feb), the move towards more players in the content industry deploying paywalls may be set to continue. This means that members of the public will have to pay to view copies of works that were available without charge previously, merely because content owners want to charge a relatively small number of commercial users.

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