In the case of Meltwater News and the Newspaper Licensing Agency (NLA) the NLA claimed that the intellectual property rights of its members were being infringed. Meltwater News monitored a range of news websites and emailed or provided access on its website to the collated content via an online media-monitoring service.
The key matter referred to the European Court of Justice (ECJ) by the Supreme Court was whether accessing newspaper articles via the Meltwater News website required the copyright owner's authorisation. Such internet browsing leads to copies being made on the user's computer screen and internet cache which the NLA contended did not fall within Article 5(1) Copyright Directive1 which permits temporary acts of reproduction that meet certain conditions. The case was referred to the ECJ and judgment was handed down on 5 June 20142.
The Copyright Directive
Pursuant to Article 2(a) Copyright Directive the owners of copyright works have an exclusive right to authorise or prohibit the reproduction of their works. Article 5(1) Copyright Directive provides an exception to this requirement in relation to temporary acts of reproduction "which are transient or incidental and an integral and essential part of a technological process." This exemption applies in situations which do not conflict with a normal exploitation of the work or other subject matter, and do not unreasonably prejudice the legitimate interests of the rights-holder (Article 5(5) Copyright Directive).
The ECJ considered whether copies made by an end-user in the process of viewing a website (without downloading, printing or trying to make a copy of it) whether on screen or in the internet cache on the user's computer fall within the Article 5(1) exception where, in each case, such copies are retained for no longer than typically held in accordance with the ordinary processes of a computer.
Was the act of reproduction temporary? The ECJ held that such copies were temporary because in both cases they were automatically deleted by the standard operation of the computer: on-screen copies were only held until the user moves away from the relevant webpage and cached copies were only held until they were overwritten by alternative material.
Was the act of reproduction an integral and essential part of the technological process? The ECJ found that the acts of reproduction were carried out entirely in the context of the implementation of a technological process and the technological process could not function correctly and efficiently without those acts.
Was the act of reproduction transient or incidental? The ECJ found that the period during which the on-screen copies remained in existence was limited to what was required for the technological process used to view the relevant website and so the reproduction was transient. Further, the copies were incidental, as they did not exist independently of and had no purpose independent of the main technological process.
Many would agree that this is a natural outcome of the questions referred and moving forward gives us certainty.
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