Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited & Others [2013] UKFC 18
The Supreme Court has referred to the CJEU the question of whether internet browsing benefits from the "temporary reproduction" exemption in Article 5.1 of the Copyright Directive.
The Meltwater group provides news monitoring services to PRCA members. It has an automatic software programme which searches websites of NLA members (i.e. newspapers and other publications) and produces, based on search terms supplied by customers, search results consisting of a hyperlink to relevant articles, the opening words of the article and an extract of the article showing the context in which the search term appeared. The results are emailed to members and are also available for viewing on Meltwater's website.
Following previous litigation, Meltwater had taken a licence from the NLAL for its activities (although it denied that it required one). The question for the Supreme Court was whether PRCA members themselves required a copyright licence to view the results on Meltwater's website. It was accepted that a licence was required to receive the emails.
The relevant legislation is contained in Article 5(1) of the Copyright Directive which provides that the exclusive right to authorise temporary or permanent reproduction of works (i.e. the basic right of copyright holders) does not apply where the temporary acts of reproduction:
- are transient or incidental and an integral and essential part of the technological process
- have the sole purpose of enabling .......a lawful use of a work to be made and
- have no independent economic significance.
Recital 33 of the Directive provides that the exception includes acts "which enable browsing as well as acts of caching to take place".
The Supreme Court decided to refer the question to the CJEU because of the importance of the answer to millions of non-commercial users of the internet across the EU who might unwittingly be incurring civil liability by viewing copyright material on the internet without the authority of the rights-holder.
The Supreme Court did express its own view, namely that the exception in Article 5(1) was satisfied, i.e. mere viewing of material on another persons website, rather than downloading or printing it, did not amount to infringement of copyright. It reviewed and applied recent CJEU case law . It was clear from the Directive and in particular recital 33 that the exception was intended to include acts such a browsing as well as caching.
The court rejected the NLA's argument that the material cached was not temporary or transient because the user could make a discretionary decision to close down his computer and therefore leave the material in cache indefinitely until the browser was used again. This was an artificial way of extending the relevant technological process and, if correct, would mean that Article 5(1) would never apply to internet browsing.
Comment.One imagines that the CJEU will come to the same conclusion as the Supreme Court.
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