
The decision notes that if it is an infringement merely to view
copyright material, without downloading or printing out, then those who browse
the internet are likely unintentionally to incur civil liability, at least in
principle, by merely coming upon a web-page containing copyright material in
the course of browsing.
The Supreme Court recognises that "the issue has a
transnational dimension and that the application of copyright law to internet
use has important implications for many millions of people across the EU making
use of what has become a basic technical facility. These considerations make it
desirable that any decision on the point should be referred to the Court of
Justice for a preliminary ruling, so that the critical point may be resolved in
a manner which will apply uniformly across the European Union."
On that basis the Supreme Court will refer to the CJEU the
question whether the requirements of article 5.1 of the Information Society Directive
that acts of reproduction should be (i) temporary, (ii) transient or incidental
and (iii) an integral and essential part of the technological process, are
satisfied by the technical features described at paragraphs 2 and 31-32 of the
Supreme Court judgment, having regard in particular to the fact that a copy of
protected material may in the ordinary course of internet usage remain in the
cache for a period of time after the browsing session which has generated that
copy is completed until it is overlaid by other material, and a screen copy will
remain on screen until the browsing session is terminated by the user.
The specific questions to be referred are yet to be decided.
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