CJEU decides that Web browsing DOES fall within Article 5(1)

In the case of  Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others,  case C‑360/13,The Court of Justice of the European Union has held that browsing and viewing articles online does not require authorisation from the copyright holder, with PRCA director general Francis Ingham saying: "We are utterly delighted that the CJEU has accepted all of our arguments against the NLA". PRCA had lost in the Hiugh Court and the Court of Appeal and the case was referred to the CJEU by the UK's Supreme Court where Lord Sumption summarised the case thus:

The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. 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 also in the internet “cache” on the hard disk. The screen copy is self-evidently an essential part of the technology involved, without which the web-page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web-page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage [...] The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner." 

At the heart of the case was whether such copies fall within the meaning of Article 5(1) of The InfoSoc Directive 2001/29/EC (and and its corresponding provision in Section 28A of the UK Copyright, Designs and Patents Act 1988). The test is actually five steps - the referring court had already determined that the on-screen copies and cached copies satisfy the fourth and fifth conditions set out in Article 5(1), so the CJEU had just to consider the first three conditions.

- it is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
- it has no independent economic significance.

The court decided that yes indeed such copies WERE (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process.  For the copies at issue in the main proceedings to be used without authorisation of the copyright owner as an exception,  the use also had to satisfy the conditions laid down in Article 5(5) and again the Court found that the test was satisfied: The exception would apply only (1) in certain special cases (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holders. Yes said the Court  - all three steps are satisfied - concluding "Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."  

PRCA director general Francis Ingham added "The Court of Justice, like the Supreme Court before it, understands that the NLA’s attempts to charge for reading online content do not just affect the PR world, but the fundamental rights of all EU citizens to browse the internet" and "This is a huge step in the right direction for the courts as they seek ways to deal with the thorny issues of internet use and copyright law. We are pleased that we have stood up for the PR industry – along with Meltwater – when everyone else rolled over."

However, David Pugh, managing director of the NLA, stressed that the result of the case had no bearing on the licences NLA Media Access issued to Meltwater and other media monitoring agencies or to those agencies' clients telling PR Week  "Media monitoring agencies still require a licence to copy online content to create paid-for services for their clients and their clients still need a licence to receive those services. This ruling does not change anything in that. If you're a client of Meltwater, you still need a licence to view that content." adding  "This will only have an impact if new services are developed in future where the agencies create a portal that their clients access to view the content; if that means the end user does not need to pay a licence fee then we would seek to increase the fees paid by Meltwater and other agencies."

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