UK: UK Supreme Court Asks Europe's Top Court To Decide Fundamental Issues Around Internet Browsing

Last Updated: 24 April 2013
Article by David Naylor, Beverley Potts and Rebecca Swindells

Public Relations Consultants Association Limited (Appellant) v The Newspaper Licensing Agency Limited and others (Respondents) (2013) UKSC 18

The UK Supreme Court has decided to refer fundamental questions about the operation of the internet and copyright to the Court of Justice of the European Union.   The outcome of the case could have a huge impact on internet users across the EU.

The Supreme Court's provisional opinion is that, where a web-page is viewed by a user on his computer, without being downloaded or printed, the temporary copies made on screen and in the internet "cache" should be exempt from copyright infringement. These copies are merely an incidental consequence of using a computer to view the material and the "temporary copies exception" in s28A CDPA 1988 should allow the making of such copies to enable users to view copyright material on the internet.

Background

The Newspaper Licensing Agency ("NLA") manages intellectual property rights for its members by licensing the right to make copies of newspaper content. Meltwater operates an online media monitoring service ("Meltwater News") using a "spider" program, which scrapes websites of newspaper publishers to obtain details of articles using keywords that are relevant to its customers' businesses. Meltwater produces a monitoring report which includes a hyperlink (in the form of a reproduction of the headline), which enables the user to access the article on the relevant source website.

Meltwater has a licence from the NLA regarding its use of content from publishers who are NLA members. The parties agreed that Meltwater's customers require a licence to receive Meltwater News in its present form because the monitoring report is sent via email. The question before the Supreme Court was whether Meltwater's customers also need a licence to receive Meltwater News if the monitoring report were only made available on Meltwater's website.

Temporary Copies Exception (the "Exception")

s28A of Copyright Designs and Patents Act 1988 ("CDPA") and Article 5(1) of the InfoSoc Directive (2001/29/EC) (the "Directive") set out an exception to copyright infringement. In Infopaq I (2010) FSR 495 at (54) the CJEU paraphrased that this exempts from copyright infringement an "act of reproduction" dependent on five conditions:

  • the act is temporary;
  • it is transient or incidental;
  • it is an integral and essential part of the technological process;
  • the sole purpose of that process must be to enable transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject matter; and
  • the act has no independent economic significance.

First Instance and Court of Appeal decisions

At first instance, Proudman J thought that Meltwater's customers needed a licence to access the monitoring reports on the website. In her view the making of copies in the user's computer in the course of browsing was not part of the technological process because: (a) it was generated by the user's voluntary decision to access the web-page; and (b) it was, in reality, the end result of that process since it was what the end-user viewed. In addition, the viewing of these copies did not constitute "lawful" use because they were not authorised by the copyright owner. In her view, the Exception was only available where copies were made to enable efficient transmission in a network by an intermediary such as an ISP. Click here to see our report on this earlier decision.

The Court of Appeal agreed with Justice Proudman's conclusion, essentially on the ground that unlicensed internet browsing could never satisfy the conditions laid out in the Exception.

Supreme Court Judgment

The Supreme Court (Lord Sumption giving the judgment) reviewed previous CJEU case law on the issue (in particular, Infopaq and the Premier League case) and summarised the position as follows:

  • The Exception applies to copies made as an integral and necessary part of a "technological process", in particular the digital processing of data. For this purpose, the making of copies is a "necessary" part of the process if it enables it to function "correctly and efficiently";
  • The copies must be temporary in that the storage and deletion of the copyright material must be the automatic consequence of the user's decision to initiate or terminate the relevant technological process, as opposed to being dependent on some further discretionary human intervention. In addition, the duration of the copy should be limited to what is necessary for the completion of the relevant technological process;
  • The exception is not limited to copies made in order to enable the transmission of material through intermediaries in a network. It also applies to copies made for the sole purpose of enabling other uses, provided these uses are lawful;
  • A use is lawful even though it has not been authorised by the rights owner if use of material was not contrary to the "applicable legislation"; and
  • The temporary copy must have no "independent economic significance" but this does not mean that it must have no commercial value.

The NLA had argued that the Exception was limited and intended for intermediaries such as ISPs to allow networks to pass data and make the internet function. The Supreme Court disagreed with this. From the recitals to the Directive, it was clear that the exception was intended to "include acts which enable browsing as well as acts of caching to take place".  The recent CJEU cases (which the lower Courts did not have the benefit of) state clearly that the Exception covers "lawful use", whether or not authorised by the copyright owner, which necessarily includes use of the work by an end-user browsing the internet. Copies in the cache and on screen are an integral part of the technological process as they are basic features of modern computers. Copies are stored automatically by browsing and deleted automatically rather than being dependent on discretionary human intervention and are retained for no longer than the ordinary processes associated with internet use. In this respect, the Supreme Court stated that the "technological processes in question" are those necessarily associated with web browsing, which includes the retention of material in the cache. Finally, the copying has no independent economic value unless Meltwater's customers download or print the material.

The Supreme Court also disagreed with NLA that allowing viewing of copyright material on a web-page without a licence from the copyright owner would lead to large-scale piracy. It has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form and this has never been considered to be inconsistent with high levels of IP protection. The Exception should treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical process incidentally involves the making of temporary copies. It would also be an unacceptable result for those who browse the internet to incur civil liability and it would be wrong to make infringers of millions of ordinary internet users across the EU.

Reference to the CJEU

The Supreme Court recognised that this was an important issue with a transnational dimension and important implications for many millions of people in the EU. Accordingly, before making any order, it asked the CJEU for a preliminary ruling so that the point can be resolved in a manner which is uniform across the EU. The specific form of the questions is still to be determined but they should cover whether the requirements of the Exception are satisfied by the technical process of internet browsing, having regard to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time.

Comment

A CJEU reference is certainly welcome to provide some clarity on the issue across Europe. However, the consequent delays before we get a final result are unfortunate, particularly because internet technology develops so quickly.

The NLA has already announced that it does not envisage changing its web licences pending the judgment from the CJEU, which is not likely until next year.  On the other hand, we may well see a change in Meltwater's business model so monitoring reports are no longer emailed to customers. The Supreme Court has also noted that one consequence of its ruling might be an increase in the licence fee payable by Meltwater and the NLA have already lodged an alternative claim with the Copyright Tribunal on that basis.

Many will take the view that the Supreme Court has taken a sensible, pragmatic approach in its  strong endorsement of Meltwater's arguments that the Exception was intended to cover more than network transmissions by ISPs. We will have to wait to see if the CJEU agrees but, in the meantime, internet users can take some comfort from the guidance that the simple act of internet browsing is not an infringement. On the other hand, the Exception does not exempt intermediaries such as Meltwater, from needing to obtain a licence to upload copyright material onto their website or make non-temporary copies of copyright material in some other way.

One interesting aspect for the CJEU to consider is whether copies in the internet cache can still be considered to be "temporary" and qualify under the Exception, even if they remain in the cache for long periods. The Supreme Court emphasised the importance of the automatic storage and deletion of the copies but it is clear from Infopaq that there is an additional requirement that the duration of the copy should also be limited to what is necessary for the completion of the technological processes in question. Lord Sumption thought the "technological processes in question" were those necessarily associated with web browsing and this included the retention of material in the cache (however long that might be) provided that the copies were retained there only as long as the ordinary processes associated with internet use continued.

Finally, it should be remembered that the High Court and Court of Appeal also ruled that some headlines were capable of copyright protection, independent from the article to which they related, provided that they reflected the intellectual creation of the author.  This ruling is unaffected by the Supreme Court decision. The use of headlines as links in any commercial service should therefore be avoided without a licence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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