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."

More from Eleonora on the IPKat here.

Breaking the internet: a response

The 1709 Blog is committed to furthering the copyright debate on all matters of public interest and is therefore pleased to host this response by James Mackenzie (Commercial Director, Cutbot Ltd) to Simon Clark's recent comments on the dispute between Meltwater and the Newspaper Licensing Agency (NLA):

Last week Simon Clark from Berwin Leighton Paisner argued here that the infamous High Court and Court of Appeal rulings on Meltwater v NLA don't "break the internet", as others have claimed. There were two odd omissions from his piece: first, an acknowledgement that he helped to represent the NLA, and second, any direct quotes from the courts' judgments. I should therefore explain that I am a founder of Cutbot, a new online media monitoring firm. Nevertheless, my objections to his position and to the courts' rulings are to the principle more than to the commercial consequences. Let's start by disposing of one of Mr Clark's red herrings. He claims that the rulings rested in part on the terms and conditions posted as public notices (in the Hitchhiker's Guide sense) on publishers' websites. Entirely untrue. To quote the Court of Appeal (§49):

The purpose of these proceedings is to ascertain the rights of the parties in relation to copyright, not some independent contractual right of a publisher.

He also sets out a straw man argument, which he claims is regularly made, that the Court of Appeal has made "all browsing on the internet illegal". No, it has not. But nor does the ruling only affect paid-for monitoring services like Meltwater or Cutbot. To quote from the High Court (this is the bulk of §103):

When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer. … [I]t seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.

The Court of Appeal, summarising the High Court's ruling, explained that (from §5):

[T]he copies made by the end-user's computer of … the article itself when clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers' copyright.

Remember these are not copies in the sense of republication elsewhere for any purpose, commercial or otherwise. These prima facie infringements occur when a user clicks on a link in an email and their computer asks a publisher's server for a copy of a legitimate article, as posted on the publisher's site. The publisher's server freely provides the HTML and associated code required to view the page. Receiving this information is, the courts argue, prima facie an infringement of copyright. Furthermore, just viewing an email containing headlines and links to legitimate content will infringe, (High Court, §104):

An End User who uses the share function to forward a headline Link (and, a fortiori, an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under s. 18 CDPA.

The scope of the courts' rulings is actually this. All browsing of copyright material is a potential infringement unless a defence of non-commercial or private use applies. So too is merely referring to a work by its title (such as the headline). Simply receiving an email with links can be infringing – even if you have no contractual relationship with any media monitoring firm. The fact that the NLA have only hit media monitoring firms and our clients should not reassure anyone else who visits the Guardian or Telegraph websites at work. You should also worry that they require a licence from a small UK startup like ours, with a turnover of below £30k, but have exempted Google, whose UK turnover alone is nearly £400m. The Google News site is, of course, free to the end user, but Google is hardly a charity. As the two pigs fail to notice in the context of Facebook, we're not the customers, we're the product. But Google News is a sideshow compared to Google's main operation. They aim to index every public page with copyright material, and are not charged for the privilege. We index a small subset of those pages and are threatened with a charge equivalent to a third of our turnover (Meltwater are asked to pay 0.14% of theirs, incidentally). The upshot is that any search engine could, if the publishers wanted, be charged or excluded. They gave up in Belgium, but that's hardly reassuring either. Clearly newspaper articles are works for copyright purposes, which is why we do not show clients any part of the body of the article, unlike Meltwater. Headlines are titles, though, just like titles for any other work. Whether or not they are copyright, they are also the only clear way to refer to a work. Even if one agrees that headlines can be copyright, that should not necessarily imply that using them to reference articles constitutes infringement. That's an essential part of the democratic flow of information, as protected by Article 10 of the ECHR. In fact, the protocols on which the internet is built include inherent implied licences. We intend to challenge some of the consequences of these confused rulings: by negotiation with the NLA if possible, or through the Copyright Tribunal if not. For example, the NLA, acting as a collecting society, charge us and our clients a licence fee, and obtain our clients' contact details, while running a partially competitive service called eClips. It's hard to imagine a clearer prima facie breach of competition law, facilitated in this case by unclear legislation and a collecting society determined to see what Professor Lionel Bently calls "innocent acts" defined as infringements. Other problems caused here may be resolved in the Supreme Court, especially given developments in EU law (notably Infopaq II and FAPL). Some, I suspect, will have to be legislated on if Ministers don't want a uniquely heavy-handed copyright regime to stifle the sorts of legitimate businesses that thrive elsewhere, and if they don't want to hand UK markets over to our unhindered competition in the US or elsewhere in the EU.

Why the Meltwater case won't break the internet

The following piece is a guest post by Simon Clark (Head of Intellectual Property, Berwin Leighton Paisner LLP) in which he outlines his view on the implications (or lack of them) for internet browsing of the much-discussed litigation before the courts of England and Wales in NLA v Meltwater.  Whether you agree with Simon or whether your take on this litigation is quite different, do let us know.

Why the Meltwater case will not break the internet 

You may have read some recent discussion on this blog regarding the effects of the Newspaper Licensing Agency’s litigation with Meltwater and the PRCA on “linking” and “browsing”. 

One of the often repeated claims is that the Court of Appeal’s decision has been to make all browsing on the internet illegal. In this post I’ll explain why this is a misunderstanding – both of the nature of the case and the safeguards in place that would make such a result impossible.

The background to various proceedings between the NLA and Meltwater and the PRCA are given in more detail here.  But, in brief, the litigation had little to do with either “linking” or “browsing” when both the High Court and the Court of Appeal made their rulings in favour of the NLA. 

In fact, the litigation only relates to the extent to which Meltwater’s customers and other end users of paid-for online press monitoring services require a copyright licence. The Courts found in favour of the NLA, but the PRCA appealed a single issue to the Supreme Court which they say has a direct effect on the legality of browsing. This is known as the “temporary copying” exception. 

The reason it is called an exception is because, under current copyright law, any original article, plus some extracts of an article and some headlines appearing on newspaper websites will be protected by copyright. However, since temporary copies as well as permanent copies can infringe copyright, calling the exception in issue the “temporary copying” exception is somewhat misleading. In fact, the exception only applies to certain types of temporary copies and the European Courts have said that it must be interpreted narrowly.     

Most acts of browsing are either authorised or fall within an existing exception 

If internet users access a newspaper website on their computers to read an article, they make a copy of the article in the memory of their computers, and a copy appears on their computer screens. Does this mean that every internet user that accesses an article on a website infringes copyright? Of course not. There will be no infringement of copyright if the otherwise infringing act falls within one of the exceptions, or if the owner has authorised the act. 

It is not an infringement of copyright if the acts are undertaken for “the purposes of research for a non-commercial purpose” or for “the purposes of private study”. Many internet users’ browsing activities will fall within these exceptions. 

Most websites are designed to be accessed by members of the public. The operators of those websites add content to their website with the very intention of wanting people to read it. They have given an implied, free-of-charge copyright licence to the reader to make a copy of their content on the reader’s computer screen so that they can view it.  As such, most acts of browsing will be entirely legal and will not infringe copyright. 

So what about for-profit media monitoring services like Meltwater? 

Newspaper publishers are different to many other websites as they have only given an express licence (made clear in their terms and conditions) to members of the public to reproduce the articles on their computer screens so that they can read them for non-commercial purposes.

The newspapers have made it very clear (including expressly in their terms and conditions, but also through the litigation) that no such licence is granted to a client of a paid-for media monitoring agency such as Meltwater which is using the newspapers’ content for commercial purposes. Despite this, Meltwater and the PRCA argue that the copies of the articles made on the end user’s computer screen and in their computer’s memory fall within the “temporary copying” exception.

Accordingly, in February 2013 the Supreme Court will have to decide whether the Court of Appeal was right to conclude that the copy of the newspaper article which appears on the user’s screen does not fall within the temporary copying exception.  The screen copy is the result of users paying for a media monitoring service such as Meltwater’s, and acts as a substitute for the hard copy article which users would otherwise have had to have paid for.  The PRCA argues that it falls within the exception, because the screen copy is temporary and appears as part of the same technical process involved with any act of browsing.  The NLA’s position is that it does not, because it is far removed from the non-profit making temporary copies that the exception was intended to cover.  It is the final copy produced at the end of the technological process that the end user has paid to receive, rather than an incidental copy.  

So in summary:

1.     Copyright in an article does not simply disappear as soon the article is put on the internet;

2.     It is perfectly permissible for a copyright owner to grant a copyright licence to allow some types of use (e.g. non-commercial) but not others (e.g. commercial);

3.     Most websites grant an express or implied copyright licence which permits acts of browsing;

4.     Browsing a website for private study and non-commercial research is already expressly permitted by existing copyright law;

5.     Linking to articles for the purposes of criticism or review or for reporting current events may well fall within one of the other specific exceptions;

This is a summary of a longer article which you can access here.