Browsing on the internet is not a copyright infringement

In a landmark case, the Court of Justice of the European Union (CJEU) has ruled that we can all browse the internet without requiring a copyright licence from content owners. It may surprise you to learn that this was ever in doubt, but the CJEU in Public Relations Consultants Association Ltd v Newspaper Licensing Agency has resolved what threatened to be a cripplingly complicated licensing situation for internet users. The case concerned whether or not one needs to obtain authorisation from copyright owners for the viewing of websites where a copy of the site would be made on the user’s computer screen and in the internet cache of its computer’s hard drive within the strict meaning of the relevant EU Directive. Content owners may try to push hard for licensing of each and every reproduction of their content by each and every user, but this case shows there are limitations to what can be claimed. Businesses would benefit from periodic reviews of any third-party content licensing to ensure they are not under-licensed or over-licensed.

The case of Public Relations Consultants Association Ltd v Newspaper Licensing Agency was a referral from the UK Supreme Court. In interpreting the infringement exemption for temporary acts of reproduction with no independent economic significance (set out in Article 5(1) of the Information Society Directive 2001), the CJEU held that the acts in question were temporary, transient, or incidental and an integral and essential part of a technological process as required by Article 5.

Although the conditions must be interpreted strictly, the Court emphasised that they must “allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of rights holders and users of protected works … ” It went on to give arguably a purposive interpretation of the provisions in the Directive. On-screen copies of documents are deleted, it said, when an internet user moves away from the website. Viewed and cached copies are automatically replaced by other content after a certain time. Thus, the copies are temporary, said the Court. Even though the process could be implemented without acts of reproduction in the cache, it “cannot function correctly and efficiently” due to the volumes of data transmitted online. The on-screen copies are also presently necessary for the viewing of websites to function correctly and efficiently. The on-screen and cached copies are created and deleted by the technological process used for viewing websites, and it is irrelevant under existing case law that the process is activated by the internet user, i.e. human intervention.

Having considered the requirements of Article 5(1), the Court went on to consider Article 5(5), namely, that the temporary copy exemption can only apply in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the rights holders. The Court held that the on-screen and cached copies are only created for the purposes of viewing a website and are therefore a special case and that the legitimate interests of the rights holders are protected by the original licence obtained by the publishers of the websites (in this case, PRCA). Finally, the use does not conflict with the normal exploitation of the works.

Thus, when the case returns to the Supreme Court, it is likely that PRCA’s members will not be required to obtain a licence from the NLA (the body of publishers of newspapers in the UK) for their online receipt of monitoring reports. Instead, they can rely on PRCA’s own web database licence with the NLA. This will lead to the overturning of the previously troubling decision of the UK Court of Appeal that had held that the accessing of the online reports required separate copyright licences within the strict meaning of the Information Society Directive.

A common-sense victory then for internet users even if the strict meaning of the Directive’s provisions required a bit of twisting to fit the outcome. For businesses, this case reminds us that content licensing is a complicated area. You need to ensure you are not under-licensed and vulnerable to legal actions but equally, you should feel confident about checking you are not over-paying for licensing that it not legally required.