European Union: CJEU Decision In Meltwater – The Internet Is Saved, Browsing Does Not Require A Licence

Last Updated: 7 August 2014
Article by Phil Sherrell and William Smith

The CJEU today handed down its judgment in the Meltwater case, Public Relations Consultants Association Ltd (PRCA) v The Newspaper Licensing Agency Limited and Others (NLA), holding that on-screen and cached copies of websites generated by end-users in the course of browsing may be made without the authorisation of copyright holders.

Background

Meltwater provided an online media monitoring service called Meltwater News. Subscribers to the service were sent emails containing the headlines of online articles, hyperlinks to the articles' publishers' websites and short extracts of the articles themselves. The NLA brought proceedings for copyright infringement against Meltwater and PRCA who represented UK public relations providers who used Meltwater News. The NLA claimed that the end-users of the service required a licence to receive it as, through ordinary use of the service, on-screen and cached copies of works in which copyright subsisted would be made on the end-users' computers when they accessed and browsed newspaper websites.

The High Court and the Court of Appeal had both held that end-users of Meltwater News did need a licence from the NLA because they were unable to rely on the temporary copies exception Article 5(1) of the Copyright Directive 2001/29/EC.

However, the UK Supreme Court strongly expressed the view that the temporary copies exception should apply to on screen and 'cached' copies of copyright protected works generated in the course of ordinary browsing. Notwithstanding its conclusions, in light of the importance of the issue to millions of internet users, not only in the UK but across the EU, the Supreme Court referred a question to the CJEU, summarised by the CJEU as follows:

"...whether Article 5 of Directive 2001/29 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 those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and, if so, whether those copies may be made without the authorisation of the copyright holders."

The CJEU Judgment

Temporary

The CJEU had no difficulty holding that both the cached copies and the on-screen copies were temporary within the meaning of the Directive, even though cached copies may be retained for some time depending on the extent and frequency of internet use.

Transient or incidental

The CJEU recalled that an act is transient if its duration is limited to what is necessary for the technical process concerned to work properly. Therefore, it was irrelevant that the on-screen copy remained in existence for as long as the user's browser was kept open because during this time the technical process used for viewing the site remained active. The on-screen copies were therefore transient within the meaning of the Directive.

In contrast, the cached copies were not necessarily transient because they remained for a period after the process for viewing the site is terminated. However, the cached copies were held to be incidental in light of the technical process used because they did not exist independently of nor have an independent purpose outside of internet browsing.

An integral and essential part of the technical process

The CJEU held that both the on-screen and cached copies were integral to internet browsing. It was irrelevant that the process by which copies were made and deleted was activated by the intervention of the internet user.

Without cached copies the internet would be unable to cope with the volume of data transmitted online and browsing would not function properly. Cached copies were therefore essential within the meaning of the Directive. It was not in dispute that the on-screen copies were also essential to viewing websites.

It was therefore held that both the on-screen copies and the cached copies satisfied the three requirements of the Article 5(1) of the Directive which were in issue.

The CJEU went on to consider whether to allow the exemption would unreasonably prejudice the legitimate interests of rights holders and therefore be unlawful under Article 5(5) of the Directive.

Under Article 3(1) of the Directive, any publishers requires authorisation from rights holders prior displaying works online. In the judgment of the CJEU this ability to control the primary act of placing the content online provides sufficient protection for copyright holders without internet users requiring further authorisation to view it.

Commentary

This decision has the effect that everyday users of the internet will not infringe copyright through browsing websites. Consequently, the internet will not be brought to its knees (at least in a legal sense) as some commentators feared and from the point of view of the reasonable expectations of internet users, this is a sensible decision.

Importantly, it should be noted that this decision applies only to browsing.  It does not legitimise printing out or downloading the content of websites without the permission of copyright owners. Nor does it affect the recent CJEU decision in  Svensson on linking.

From an industry perspective, the decision will have interesting implications for the NLA's licences (which were the origin of the dispute).  These currently require a payment by end users for acts which do not require a licence as a result of this decision.

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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