In Case C?360/13 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others, which for anachronistic reasons tends to be referred to as the Meltwater case, the CJEU has given a clear response to the question referred by the Supreme Court. To nobody’s surprise, it has ruled that clicking on a link and viewing a legally published web page is not copyright infringement. The actual wording of the formal ruling is as follows:
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.
This ruling was in response to the question referred by the UK Supreme Court, namely:
‘In circumstances where:
– an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;
– copies of that web-page are automatically made on screen and in the internet “cache” on the end-user’s [computer] hard disk;
– the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;
– the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;
– the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and
– the copies are retained for no longer than the ordinary processes associated with internet use referred to [in the fourth and fifth indents] continue;
are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC?’
Background
The case concerns the services provided by the Public Relations Consultants Association (PRCA). The appeal was about the services provided to PRCA members by Meltwater which uses automated software to create an index of words appearing in newspaper web sites. Search terms are provided by Meltwater’s customers (many of whom are PRCA members) relating to each customer’s interests and Meltwater produces a monitoring report listing the results of a search of the index for those keywords.
This monitoring report will show the opening words of the article, the keyword together with several words on either side of it and a hyperlink using the headline which enables the user to access the article on the relevant source web site. If the latter requires subscription or a payment of any sort then this is not subverted by the service; the customer must pay or subscribe as normal.
Having disputed the need for a licence in the past, Meltwater now takes a licence from the Newspaper Licensing Agency (a collecting society for newspaper rights) to provide its service. It was common ground that the current service provided by Meltwater, which necessitated the transmission of the monitoring report by e-mail, did require a licence as the e-mail copy is not temporary and is stored on the recipient’s hard drive until the end-user choses to delete it.
The question which eventually came before the Supreme Court was whether the end-user (Meltwater’s customers) would require a licence if the monitoring report were made available only on Meltwater’s web site. To the extent that the customer downloads the report from the web site, he is making a copy that will infringe the newspaper’s copyright unless he is licensed. However, the Supreme Court provisionally concluded that, if he merely views the material on the web site, this is not infringing because it is covered by the temporary or transient copy exemption under Article 5.1 of the Information Society Directive 2001/29/EC. The Supreme Court considered that the issue was so critical that a reference should be made to the CJEU and that no final order should be given by the court until this reference was determined.
