On 5 June 2014 the European Court of Justice (“ECJ”) rendered a judgment in response to a question asked by the Supreme Court of the United Kingdom. It held that onscreen and cached copies of website pages stored as a result of the end-user’s browsing on the Internet do not require any authorization from the copyright owner of the content of those pages. In its judgment, the ECJ confirmed that the copies generated during one’s viewing of a website fall under the temporary copyright exception provided in Article 5 of the Directive 2001/29/EC (the “Copyright Directive”).
The defendant in this case was the PRCA (Public Relations Consultants Association), an association which uses the media monitoring services offered by the Meltwater group of companies (“Meltwater”). Meltwater provides them with online reports on news articles published on the internet. NLA and, more generally, internet users who visit websites generate two different sorts of copies of these articles on their computer. The first one is a copy made on the user’s computer screen (“the on-screen copy”), and the second one is a copy in the cache memory of the user’s computer hard disk (“the cached copies”). Although only the copyright owner of those articles has a right to authorize the copying of his or her work, Article 5 of the Copyright Directive lays down an exception to this
In the first part of its decision, the ECJ held that the conditions laid down in Article 5(1) were fulfilled. Moreover, the Court clarified that the condition of there being a transient nature of the act of reproduction means that the reproduction must be limited to what is necessary for that process. That nature is not lost just because of the end- user’s intervention. Finally, the act of reproduction must be an integral part of a technological process and must be necessary for this process to operate efficiently. The Court stated in this regard that “without the creation of the cached copies, the internet would be unable to cope with current volumes of data transmitted online” and “the process used for viewing websites would be considerably less efficient”. In the second part of its decision, the Court confirmed that the exception applied to special cases that do not conflict with a normal exploitation of the work and that does not unreasonably prejudice the legitimate interests of the right holders, as required by Article 5(5) of the Directive. Indeed, since authorization to reproduce had to be sought in the first place for the online reports and articles to be placed on the publishers’ websites, the legitimate interests of the copyright holders were, according to the Court, properly safeguarded.
In summary, the ECJ held that the copies that were generated while one views a website satisfy the conditions of the temporary reproduction exception and may therefore be generated without the need for the copyright holders to grant any license or authorization for such reproduction. This decision appears to be in line with Recital 33 of the Copyright Directive, which seems to have been adopted precisely to cover situations such as the one at stake, and which states that “this exception should include acts which enable browsing as well as acts of caching to take place”.
This decision, read in conjunction with a previous decision rendered by the ECJ on the legality of hyper-links (Svensson case) makes it clear that the copyright legal framework cannot undermine progress towards the expending efficiency of the internet. The Court was, however, clear that this reasoning does not apply if the end-user downloads or prints out the content of the webpage. Finally the ECJ left open the question of legality of such copies in situations where the websites’ contents were put online without the right holder’s consent.
The case (C-360/13) can be found on http://www.curia.europa.eu.
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