No Copyright Authorisation Required to View Internet Links

June 2014

The CJEU has ruled that on-screen and cached copies are "temporary copies", so viewing them does not require permission from copyright holders. 

In April 2013 the UK Supreme Court referred questions to the CJEU regarding temporary copies, and the application of copyright law to the technical processes involved in viewing copyright material on the internet and the interpretation of Article 5(1) Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.  

The case, Public Relations Consultants Association Limited (PRCA) v The Newspaper Licensing Agency Limited and Others (NLA) [2013] UKSC 18, is referred to as “Meltwater”.  The Meltwater group offer a paid for media monitoring service (used by the PRCA), using automated software programmes to create an index of words appearing on newspaper websites.  Meltwater’s customers provide them with search terms of interest to them, and Meltwater produce a monitoring report of newspaper articles listing the results of a search for those search terms.

Meltwater agreed to take a licence from the publishers of the newspapers to provide their service on terms which have been settled by the Copyright Tribunal.  The Parties also agreed that Meltwater’s customers required a licence to receive the service via e-mail, as an email copy is not temporary.   It is stored on the recipient’s hard drive until the end-user chooses to delete it.

 However, NLA took the view that Meltwater and its customers required permission from the copyright holders of the newspapers to provide their service, even where a user of the service would only be making on screen and “cached” copies on the computer’s hard drive.  The UK High Court also took this view, which PRCA appealed to the UK Supreme Court.

The real question on appeal was whether Meltwater’s customers would need a licence to receive its service if the monitoring report were made available only on Meltwater’s website.  If a customer downloads the report from the website he makes a copy that will infringe the newspaper’s copyright unless he is licensed . But what if he merely views the material on the website?  Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and in the internet “cache” on the hard disk of the computer. The end-user’s object is to view the material. He does not make a copy unless he downloads or prints the image. The copies temporarily retained on the screen or in the cache are merely an incidental consequence of using a computer to view the material.

Given the appeal’s transnational dimension and potential implications for internet users across the EU, the Court referred the matter to the CJEU for a preliminary ruling. The question which it referred centred on whether the requirements of article 5.1 of the Directive that acts of reproduction should be “(i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process” were satisfied, given that copies may remain in the user’s hard drive cache after the browsing session that generated them has ended, and a screen copy will remain on screen until the browsing session is terminated by the user.

Temporary:

The Court was clear that the on-screen copies are deleted when the internet user moves away from the website viewed.   Secondly, that cached copies were normally automatically replaced by other content after a certain time, which depends on the capacity of the cache and on the extent and frequency of internet usage by the internet user concerned.   It follows that those copies are temporary in nature.

Transient or incidental:

 The Court stated that an act will be held to be ‘transient’, in the light of the technological process used, if its duration is limited to what is necessary for that process to work properly. 

It was stated that an act of reproduction can be regarded as ‘incidental’ if it neither exists independently of, nor has a purpose independent of, the technological process of which it forms part.   In the case of on-screen copies, these are automatically deleted by the computer at the moment when the internet user moves away from the website concerned and, therefore, at the moment when he terminates the technological process used for viewing that site.  It was clarified that automatic deletion does not preclude such a deletion from being preceded by human intervention.  In conclusion, it was held that the period during which the on-screen copies remain in existence is limited to what is necessary for the proper functioning of the technological process used for viewing the website concerned. Consequently, those copies must be regarded as ‘transient’.

Regarding cached copies, although they are not deleted at the time when the internet user terminates the technological process used for viewing the website concerned, since they are retained in the cache for the purposes of a possible subsequent viewing of that site, it is not necessary that such copies be categorised as ‘transient’ once it has been established that they are incidental in nature in the light of the technological process used.  Cached copies neither exist independently of, nor have a purpose independent of, the technological process at issue in the main proceedings and must, for that reason, be regarded as ‘incidental’.

Integral and Essential:

The Court pointed out that the on-screen copies and the cached copies are created and deleted by the technological process used for viewing websites, with the result that they are made entirely in the context of that process, so must be regarded as being an integral part of the technological process at issue in the main proceedings.  Regarding, essential, it was agreed that cached copies greatly facilitate browsing on the internet, since without those copies, the internet would be unable to cope with current volumes of data transmitted online. Without the creation of such copies, the process used for viewing websites would be considerably less efficient and would not be able to function properly.  Concerning the on-screen copies, the technology for the viewing of websites on computers requires such copies to be made if it is to function correctly and efficiently.

Consequently, the on-screen copies and the cached copies must be regarded as being an essential part of the technological process at issue in the main proceedings.

Conclusion:

It was concluded by the Court that on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies are temporary, transient or incidental in nature and constitute an integral and essential part of a technological process, and that they may therefore be made without the authorisation of the copyright holders.   And, although the copies make it possible, in principle, for internet users to access works displayed on websites without the authorisation of the copyright holders, the copies do not unreasonably prejudice the legitimate interests of those rights holders.

Therefore, the action of clicking on a link in order to view a web page is not an infringement of copyright.

This update was prepared by Martyn Fish: mfish@hgf-law.com Partner of HGF Law, Leeds http://www.hgf-law.com/contact.asp.  Tel:  +44(0) 113 233 0148

If you would like further advice on this or any other patent matter, please contact Martyn Fish at mfish@hgf-law.com  or your usual HGF representative or visit our Contact Page to get in touch with your nearest HGF office.