In a recent decision, the Supreme Court has come to the provisional conclusion that unauthorised browsing of copyright-protected material on the internet will not infringe copyright in that material.
The Court has, however, asked the CJEU (Court of Justice of the European Union, the EU's highest court) to confirm that it has come to the correct decision because it involves the construction of Article 5(1) of the EU Copyright Directive and has consequences for rights-holders, internet users and intermediaries across the EU.
In coming to its conclusion, the Court was clearly heavily influenced by what it felt was the acceptable result for society: namely, that many millions of unwitting internet users should not be held liable for copyright infringement simply by browsing copyright-protected material on the internet – just as they would not be held liable for merely viewing such material in its physical form or on a television screen in a private home.
Although by browsing online the internet user would be copying the protected material on the computer screen and in the computer's cache, the Court found that such copying was within the exemption from infringement set out in the said Article 5(1) – namely, that the copying of the material on the screen and in the cache was temporary and an integral and essential part of the technological process of browsing which was not otherwise restricted by law and which had no independent economic significance.
However, the Court was quick to point out that once an internet user downloaded, printed or otherwise made a copy of the material which was not an incidental result of browsing, his/her activity would fall outside the exemption provided by Article 5(1).
In those circumstances, the Court felt it was likely that a rights-holder would charge intermediaries a higher licence fee to make the protected material available to internet users, which was plainly more favourable than seeking to collect small licence fees from many internet users.
The Court did not accept that this would open the floodgates to piracy, saying that a rights- holder would still have remedies against those more at fault, such as the uploaders of the infringing material.
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