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Browse Away - UK Supreme Court Says Temporary Copies of Copyright Works Produced While Browsing Do Not Infringe Copyright, But Plays It Safe by Seeking a Preliminary Ruling from the CJEU




by:
Akash Sachdeva
Edwards Wildman Palmer LLP - London Office

 
May 2, 2013

Previously published on May 2013

On 17 April 2013, the UK Supreme Court gave its judgment in Public Relations Consultants Association Limited  v The Newspaper Licensing Agency Limited and others [2013] UKSC 18.
 
The Court had to consider whether temporary copies of copyright works produced while browsing the internet (either on a user's screen and in the user's computer cache) infringed copyright in that material.
 
The Court's view, contrary to the judgments of both the High Court and Court of Appeal, was that such temporary copies (whether for private or commercial use) do not infringe the copyright.
 
The Facts

The particular issue being considered in this case was whether users of a news aggregation service operated by the commercial media monitoring company, Meltwater, had to obtain a separate licence (called a "WEUL") from the Newspaper Licensing Authority to receive the news service by email and to view it online, since the service included sufficiently substantial extracts of headlines and news articles that they could have infringed copyright. The user in question, the PR Consultants Association, contended that, unlike the parties creating the potentially infringing content, no licence was required for users to simply view the news service online since no part of that act involved the unauthorised copying of protected material. There was no appeal from the lower courts' findings that a licence would be required to receive the same aggregation via email.
 
The Law

The main point under consideration was whether the act of browsing causing temporary copies to be made was within the temporary copies exception set out in s.28A CDPA 1988, which implements Art.5(1) Directive 2001/29/EC (InfoSoc Directive).
 
For the exception to apply, five conditions have to be met;

  • the act is temporary;

  • it is transient or incidental;

  • it is an integral and essential part of a technological process,

  • the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary, or a lawful use of protected material; and

  • the act has no independent economic significance.

The Decision

The Supreme Court held that copies created by browsing the internet are covered by Art.5(1).The court was led to this conclusion by Court of Justice of the European Union (CJEU) jurisprudence on the operation of the exception, some of which was unavailable when the lower courts considered the issues. Notably:

  • an 'integral' part of a technological process is one that allows the process to function 'correctly and efficiently' (as held in Infopaq II);

  • copies are 'transient, incidental and integral' where they are subject to 'automatic storage and deletion' and their length of time in existence is limited to what is required for the process to complete (Infopaq I)

  • absence of 'independent economic significance' does not mean that the temporary copy has no value, rather it means that it has no additional value to that derived from the mere transmission/viewing of the material (Premier League and Infopaq II)

In reaching its decision, the Supreme Court carried out a reasoned analysis and was clear in its decision that the making of temporary copies whilst browsing does not infringe copyright. However, given the pan-national importance of the European law issues involved, the court referred the matter to the CJEU to obtain a ruling that will have effect not just in the UK but will be binding in all Member States of the EU.

Comment

Given the recent jurisprudence from the CJEU, and the impracticality of the lower courts' rulings in a majority of real-life applications, the Court's decision is a sensible one and users of the internet will breathe a sigh of relief that they are not likely to be infringing copyright by the mere act of browsing.  This was the Supreme Court exercising its pragmatic prerogative and interpreting the temporary copies exemption in a manner that makes commercial sense.  We do not expect the CJEU to take a contrary position although, of course, nothing is certain.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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