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19/06/2014

Keep calm and browse on

By Mika Puittinen, Kalle Hynönen

Browsing the internet – even in a commercial context – does not require authorisation from the relevant copyright owners, says the EU’s top court.

The Court of Justice of the European Union (CJEU) confirmed in its recent judgment in Public Relations Consultants Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and Others (Case C-360/13) that browsing the internet without a copyright owner’s authorisation does not infringe the owner’s copyright.

According to the CJEU, copies made in the course of browsing on a user’s computer are subject to the temporary copies exception provided in the so-called Information Society Directive. Consequently, internet users are not infringing copyright when browsing websites.

For content owners, the ruling means increased difficulties in enforcing your rights against end users.

Is a licence needed or not?

The case was brought before the court by the NLA, a body set up by the newspaper publishers to provide collective licensing of newspaper content in the United Kingdom. The defendant was the PRCA, which is an association of public relations professionals who use the media monitoring service offered by a company called Meltwater.

NLA considered that Meltwater and its end customers were required to obtain a licence from the relevant copyright owners represented by NLA in order to provide and receive media monitoring services. Meltwater agreed to enter into a web database licence. PRCA, however, contended that no authorisation was required by the end users of the service in order to receive media content.

NLA argued that browsing a website constitutes making copies on the user’s computer screen (on-screen copies) and in an internet cache of a computer’s hard disk (cached copies) and, according to NLA, the end users require a licence in order to make such copies. According to the NLA, the copies made on the end user’s computer constitute a “reproduction”, within the meaning of Article 2 of the InfoSoc Directive (2001/29/EC), and are not subject to the temporary copy exception provided for in Article 5(1) of the directive.

The case was referred to the CJEU by the UK Supreme Court. The CJEU was asked to clarify whether temporary on-screen and cached copies made while browsing the internet fall under the temporary copying exception of Article 5(1) of the directive.

Browsing does not infringe

The CJEU confirmed that an end user browsing the internet without obtaining authorisation from the copyright owner does not infringe the owner’s copyright because copies made in the course of browsing fall within the temporary copies exception of Article 5(1) of the directive.

When an internet user browses a website, on-screen and cached copies are automatically created, without human intervention to the process. These copies are retained only for a short duration. On-screen copies are automatically deleted when the internet user moves away from the browsed website, and the cached copies are normally replaced by other content after a certain time. These are essential parts of the technical processes involved in browsing and, effectively, websites cannot be browsed without such copies being created.

Therefore, the CJEU emphasised that Article 5(1) of the directive must be understood as meaning that both on-screen and cached copies satisfy the conditions that the copies must be temporary, transient or incidental in nature, and they must constitute an integral and essential part of a technological process.

Furthermore, copies must satisfy the conditions laid down in the Article 5(5) of the directive – the so-called “three-step test,” which all copyright exceptions must satisfy, and that they may, therefore, be made without authorisation from the copyright owner.

Did the CJEU save the internet?

The outcome of the case may seem self-evident, but the question addressed is fundamental: Had the CJEU decided that on-screen copies or cache copies do not fall within the temporary copies exception, millions of internet users across Europe would be unknowingly infringing copyrights every day simply by browsing websites. In effect, such a ruling would have meant that there is a “right to read” in copyright law.

For end users, whether individuals or companies, the ruling means that they cannot be found to infringe copyrights simply by browsing the web or receiving, for example, media monitoring services. However, if they are downloading files, printing the content, or making other permanent copies without authorisation, they may be found to infringe, and then copyright owners have the possibility to act against them.

For content owners, on the other hand, the ruling means that instead of cutting straight to the end users, they must pursue the actual service providers. If the end user is merely viewing a website’s content and is not creating permanent copies by, say, downloading or printing, the activity is not subject to authorisation. In that case, an effective technical restriction may be the only means to affect the end-user side.