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Could web browsing infringe copyright?

3 July, 2013

This article is also available in:
Deutsch: Kann Surfen im Internet gegen das Urheberrecht verstoßen?

Do you violate copyright law by using an Internet browser? This is, in short, the question that the UK Supreme Court is asking the Court of Justice of the European Union (ECJ) in a preliminary ruling. The case considered by the UK Supreme Court (Public Relations Consultants Association v The Newspaper Licensing Agency Ltd & Ors) questions whether or not the mere act of viewing copyright material on a website via an Internet browser constitutes a breach of copyright.

It is yet another copyright case at the Court of Justice of the European Union (CJEU), in which rightsholders are trying to restrict the application of the copyright exceptions and limitations recognised in the 2001 Copyright Directive.

The Public Relations Consultant Association Ltd ("the Association") provides a monitoring service to its clients by using services of Meltwater group, whose software automatically identifies relevant news content. The case involves an appeal against a decision that clients of the Association needed a licence to view the media monitoring service.

Meltwater holds a licence to access the plaintiff's (The Newspaper Licensing Agency Ltd) material. The issue at stake here is whether the clients were in breach of copyright when they accessed the copyrighted material via a web-browser. In order to view any web content, a "cache" copy of the document is automatically created and the plaintiffs argue that this “unauthorised” copy could breach copyright.

According to the Supreme Court, web-browsing creates temporary copies that are covered by the exception established in Article 5.1 of Directive 2001/29/EC and do not constitute an infringement of copyright. "Cache" copies are stored automatically by browsing and also automatically deleted after a certain lapse of time coupled with the browser use and are not dependent on human intervention. The Supreme Court considers that the exception applies to copies made for the sole purpose of allowing lawful uses and this includes browsing the web. The Court rightly notes that it would be an unacceptable result to consider millions of ordinary Internet users to be copyright infringers by dint of merely accessing a web-page containing copyright material.

The Court, however, decided to refer the case to the ECJ because of the transnational dimension of the question that could impact Internet users across the EU.

Behind this case is the question whether or not people should pay a licence to access copyrighted material that is legally available online. Recently, as in the discussions of the “stakeholder dialogue” Licences for Europe, there is a tendency to try to solve profound problems created by the lack of harmonisation of copyright exceptions and limitations by simply licensing special uses even though these uses may be exempted. In the up-coming case, the broader question is how could you justify demanding a licence for what is simply a temporary reproduction which is transient or incidental and is essential to enable browsing of legal content on the web?

UK Supreme Court Decision to refer to the CJEU (17.04.2013)

(Contribution by Marie Humeau - EDRi)



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