Copyright: Supreme Court Considers "Browsing Defence"

The Supreme Court has handed down its long awaited decision in the Meltwater case which addresses important questions about the application of copyright law to internet browsing.

It is the Supreme Court's view that mere browsing (as opposed to copying or downloading) benefits from the exemption to copyright infringement for temporary reproduction under Art5(1) of the Copyright Directive. However due to the impact of this case on millions of internet users across Europe, the Supreme Court has referred the question of the "browsing defence" to copyright infringement to the Court of Justice of the European (CJEU).

Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others [2013] UKSC 18, 17 April 2013

Background

The Supreme Court considered the provisions of the Copyright Directive (2001/29/EC).

Article 5(1) provides an exemption from copyright infringement for temporary reproduction. The case of Infopaq 1^[i] paraphrased the requirements for Article 5(1) into 5 conditions to be satisfied for the exemption to apply:

• 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 is to enable a 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.

Article 5(5) restricts this exception to certain special cases 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 rightholder.

Facts

The Appellant was Public Relations Consultants Association (PRCA - a trade body of which Meltwater is a member). Meltwater monitors news coverage for its clients using online monitoring and search services based on a set of search terms. Meltwater sends the monitoring report "Meltwater News" to customers by email but the customer can also access it through Meltwater's website.

The respondent (and Claimant in the first action) was the Newspaper Licensing Agency (NLA), a collecting society that manages the IP rights of its members by providing a licence for use of its member's copyright works, such as those contained in Meltwater News.

This case started its judicial journey in November 2010 when the High Court held that end users did require an NLA licence to receive and view Meltwater News as this was not caught by the exception under Article 5(1) of the Copyright Directive. This decision was appealed to the Court of Appeal who upheld the High Court decision and dismissed the appeal. PRCA appealed to the Supreme Court.

It was accepted (from previous decisions) that a NLA licence was required to view Meltwater News received by email as this constitutes reproduction of copyright work on the user's computer which remains until the user choses to delete it. However, the question before the Supreme Court was whether a NLA licence was required to view Meltwater News on Meltwater's website.

Browsing a web page (without copying or downloading) creates temporary copies on the computer screen and in the internet "cache" on the hard disk of the computer. In the ordinary course, these cached copies will be automatically over-written by the computer.

PRCA argued that the copies created when browsing were "transient or incidental and an integral and essential part of a technological process". Therefore browsing was caught by Article 5(1) providing a defence to copyright infringement. The NLA argued that cached material was not "temporary" or "transient" because it is possible for the user to close down the computer, keeping the material in the cache indefinitely until the browser was used again. Furthermore the copy on the computer screen would remain until the user chose to terminate the session.

The Decision

The Supreme Court acknowledged that its decision on the "browsing defence" will impact millions of non-commercial internet users across Europe who could unwittingly commit copyright infringement by browsing content on the internet without a NLA licence or consent of the copyright owner. In light of the far reaching implications, the Supreme Court has referred the question of whether browsing satisfies the requirements of Article 5(1) of the Copyright Directive to the CJEU.

Subject to the CJEU reference and contrary to the decisions of the earlier courts, it was the Supreme Court's view that browsing was caught by the defence for the following reasons:

• The copies are temporary, meaning that storage and deletion is an automatic consequence of the initiation or termination of the process.
• The copies are transient or incidental to the technological process.
• The copies were created as an integral and necessary part of the technological process, meaning the computer could not function effectively without the copies being made.
• Use of the material was lawful as viewing the copies was not contrary to any applicable laws, regardless of the copyright owner's consent.

• There is no "independent economic significance" to making the temporary copies, meaning there is no additional value of the copies to that of receiving or viewing the material.

Comment

The Supreme Court has opined, contrary to the earlier High Court and Court of Appeal decisions, that there is a defence of browsing under Article 5(1) and so users do not need a licence to view Meltwater News on Meltwater's website. The Supreme Court did however point out that companies providing news monitoring services would nevertheless still be under an obligation to obtain a license in order to upload copyright material onto their website or make non temporary copies of it in some other way.

The Supreme Court has taken what many consider to be a common sense and practical approach and it is anticipated that the CJEU will come to similar conclusion.

Written by Clive Thorne and Nicole Jahanshahi (nee Mellors)

[i] Case C-5/08. Infopaq International A/S v Danske Dagblades Forening [2010] F.S.R. 495. Para 54