|June 11, 2014|
Previously published on June 10, 2014
On 5 June 2014, following a request for a preliminary ruling from the Supreme Court of England and Wales, the Court of Justice of the European Union (“CJEU”) handed down its judgment in Case C-360/13, Public Relations Consultants Association Ltd v Newspaper Licensing Agency Limited and others (referred to commonly as ‘Meltwater’). As with the case of Svensson before it (reported here), the CJEU again dispensed with the option of an Advocate General’s opinion, preferring instead to grapple with the potentially significant issues inherent in the case alone.
As predicted in our assessment of the Supreme Court’s decision of May 2013 (which can be read here), the CJEU elected to uphold the reasoning of the lower court, concluding that temporary copies of copyright-protected works produced while browsing the internet (on the user’s screen itself, as well as cache copies) did not infringe the proprietor’s copyright in that material.
In reaching its decision, the CJEU considered that the legitimate interests of copyright holders were not unreasonably prejudiced by allowing caching given that authorisation for the publication of their works had already been sought by, and granted to, the publishers of the websites. In effect, the CJEU’s decision ensures that internet users can continue to browse the Internet freely, without the need to obtain a separate licence from proprietors of copyright material. Some have said, with only slight hyperbole, that the CJEU has ‘saved the Internet’.
The facts of the case are well-rehearsed. In summary, the key issue was whether users of a news aggregation service operated by the commercial media monitoring company, Meltwater, had to obtain a separate licence from the Newspaper Licensing Authority to view the news service online (it having already been decided by the Court of Appeal that receiving the news service by email was infringing).
Although the Supreme Court was unanimous in its view that a licence was not required (in so doing overturning the judgments of the High Court and Court of Appeal below it), but decided to refer certain questions to the CJEU to ensure harmonisation of the law across the EU. The question were as follows:
In circumstances where:
i. an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;
ii. copies of that web-page are automatically made on screen and in the internet “cache” on the end-user’s hard disk;
iii. the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;
iv. the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;
v. the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and
vi. the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;
Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC?
In a relatively brief decision, the CJEU came to the conclusion that temporary copies of copyright-protected works created by browsing, i.e. reproduced on the user’s screen itself, as well as in the user’s internet cache, did not infringe the proprietor’s copyright in that material. Interestingly, particularly given the contrasting positions taken by the Supreme Court and High Court/Court of Appeal, the CJEU elected not to obtain an opinion from an Advocate General, which is permitted only where no new point of law is raised.
Are such copies temporary?
In the CJEU’s estimation, it was clear that the first requirement was satisfied, as on-screen copies are deleted automatically once the user in question navigates away from the website displaying the copyright-protected material. Further, in respect of cache copies, the Court held that as these are replaced periodically by other content (and thus overwritten), they were clearly temporary in nature.
Are such copies an integral and essential part of the technological process?
For a copy to constitute an ‘integral’ part of a technological process, the acts of reproduction must be carried out entirely within the context of the implementation of that process. The Court observed that on-screen and cached copies are “created and deleted by the technological process used for viewing websites”, thereby fulfilling this condition. Applying the reasoning in Infopaq, which held that temporary acts of reproduction could in theory either initiate or terminate the technological process, the Court also concluded that it was ‘irrelevant’ in the present case that the technological process was started as a result of the internet user navigating to the particular website, and terminated by the act of reproduction itself (i.e. the on-screen copy).
The CJEU noted correctly that copies of webpages stored in a computer’s internet cache increase significantly the efficiency of browsing, enabling the internet to function in accordance with the expectations of consumers. Indeed, without such copies, the Court explained that “the internet would be unable to cope with current volumes of data transmitted online”. As such, the Court held that the reproduction of webpages as cache copies was ‘necessary’, in the sense that without such copies browsing speeds would be affected materially.
In terms of the on-screen copies, it was not in dispute that such acts of reproduction were also essential to viewing websites.
Are such copies transient or incidental?
In relation to on-screen copies, the Court held that notwithstanding the fact that these remained in existence for as long as the internet user chose to stay on the site in question, the technological process for reviewing that site also remains active during that period, meaning that such copies are (a) necessary to enable the process of browsing itself and (b) by their very nature transient.
In comparison, cached copies exist only within the context of the technological process necessary to browse the internet - such copies cannot be created outside the confines of that process and are therefore incidental to it.
Given the technological and practical challenges posed by an adverse finding, the CJEU appears to have adopted a pragmatic and commercially-minded approach to this case. Although its decision will be broadly welcomed and in effect forestalls the requirement for a general ‘internet licence’, some of the Court’s reasoning does betray its single-minded approach to securing one’s freedom to browse as well as a lack of technical expertise.
For example, having said that cached copies are necessary to enable the process of browsing to operate efficiently, the Court later concedes that it can function without such copies being made. In so doing, the Court appears to confuse cached copies on a server and cached copies on a PC. Although the former is indispensable to the efficient running of the Internet, the latter has far less impact on day to day browsing.
There are also a number of questions left unanswered by the Court. Where, for instance, a webpage is reproduced as a cache copy, but later transferred by the user in question from the internet cache to a permanent location (i.e. a user’s documents folder), would that constitute infringement? Moreover, would the Court’s position alter where material has been posted on a website without the copyright owner’s permission and is later reproduced both as an on-screen and cache copy?
More generally, the case illustrates the challenges posed by the internet to copyright law. Although the CJEU should be credited for its attempts to ensure that the law keeps pace with new technological advancements, the absence of any means by which to consider questions deemed hypothetical to the proceedings in question (i.e. the issues outlined above) means that uncertainty will persist.