Any time you view a page on the web – such as this one – you're calling into existence multiple copies of the page as it hops from the original server, through routers and proxy servers, and onto your device. To make it quicker to see the page again, your browser will usually make a copy too, which will stay in your browser cache until you clear the cache, or it's overwritten by subsequent downloads.
Does this infringe copyright? After 20 years of the worldwide web, this was, perhaps surprisingly, still a live question. The European Court of Justice's recent decision in Public Relation Consultants Association Ltd v Newspaper Licensing Agency Ltd (ECLI:EU:C:2014:910) has made it clear that, in the European Union at least, this basic feature of the web doesn't need a licence from every rights-holder along the way.
Meltwater's media monitoring service
The Meltwater group of companies provides a media monitoring service which was used by the Public Relations Consultants Association Ltd (PRCA) in the United Kingdom. Customers provide keywords to Meltwater, whose software then compile an online media monitoring report based on those search terms. That report contains headlines and links to newspaper articles with brief extracts from those articles.
The Newspaper Licensing Agency Limited (NLA) is a body which handles the collective licensing of newspaper content in the UK. It required Meltwater and its customers to enter into a licensing agreement.
The PRCA's position was that no such licence was required, at least to receive the online media monitoring reports.
EU exemptions to the exclusive reproduction right
Copyright owners have an exclusive reproduction right, but there are exemptions under Article 5(1) of the Copyright Directive 2001/29 for acts of reproduction:
- which are temporary;
- which are transient or incidental;
- which constitute an integral and essential part of a technological process;
- whose 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
- which have no independent economic significance.
The NLA argued that the viewing of the monitoring reports online creates copies of works both on the screen of the user as well as in the internet cache of the user's computer, and that both types fell outside the Article 5(1) exemption.
The question for the Court of Justice of the European Union
The UK Supreme Court found that the on-screen and cached copies were created as a result of automatic, technical processes which were essential parts of the technology involved in browsing the internet. Their creation and deletion required no human intervention, other than the decision to access the website in question. They therefore fell within the Article 5(1) exemption.
Given the importance of the issue and potential implications of the judgment for millions of internet users, however, the Supreme Court referred the matter to the Court of Justice of the European Union for a preliminary ruling on whether the on-screen copies and cached copies made by a user in viewing a website:
- were temporary, transient or incidental in nature; and
- constitute an integral and essential part of a technological process,
thus satisfying the conditions for the Article 5(1) exemption.
The copies are temporary
The Court dealt with the issue of temporariness in short shrift, noting that on-screen copies are deleted when the user moves away from the website viewed, and that the cached copies are normally automatically replaced by other content after a certain time, depending on the capacity of the cache and frequency of internet usage of the user. The Court held it thus followed that those copies are temporary in nature.
Is it transient or incidental reproduction?
The Court noted that an act of reproduction will be transient if its duration is limited to what is necessary for the relevant automated technological process to work properly. "Automated" in this context means a process that deletes the reproduction without human intervention once its function of enabling the completion of the process has ended.
It also noted the technological process may be activated and completed manually, and this is not inconsistent with the requirement of automatic deletion of the act. Thus an act of reproduction does not lose its transient nature simply because the system's deletion of the copy is preceded by the user's decision to terminate the technological process of viewing the site.
The Court held that an act of reproduction is incidental if it neither exists independently of, nor has a purpose independent of, the technological process of which it forms part.
Applying those considerations the Court noted that the on-screen copies are automatically deleted the moment the user navigates away from a website and hence, the moment the user terminates the technological process for viewing that site. Thus the on-screen copies only remain in existence for the period necessary for the proper functioning of the process of viewing the website, and are transient.
As for the cached copies, these are retained in the cache past the point at which the user terminates the process for viewing the site, implicitly suggesting they may not be transient. The Court did not make an express finding on that point, but did note that the cached copies did not need to be transient; it sufficed if they could be established to be incidental in light of the technological process in question. Here, the cached copies could not be created outside of the technological process, and therefore were incidental.
An integral and essential part of a technological process?
For this condition to be satisfied, two criteria must be fulfilled:
- the acts of reproduction must be carried out entirely in the context of the implementation of a technological process; and
- they must be completed for the technological process to function correctly and efficiently.
On the first criterion, the Court noted that the on-screen copies and cached copies are created and deleted by the technological process used for viewing websites, with the result that they are made entirely in the context of that process. The Court regarded it as irrelevant that the process is activated by the user, or is terminated by the reproduction of the on-screen copy.
On the second criterion, the Court observed that viewing internet content was greatly facilitated by the creation of the cached copies; without caching, the internet could not cope with the volumes of data transmitted online. It followed that the process for viewing websites could not function correctly and efficiently without the creation of cached copies. Unsurprisingly, there was no dispute that the creation of on-screen copies was essential to the process of viewing websites.
The interests of rights-holders
Having found the three conditions of exemption referred for determination satisfied, the Court then found that the contemplated exemption did not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of rights-holders.
In so doing, it noted that the interests of rights-holders were adequately protected by Article 3(1) of the Directive. This requires publishers of websites to obtain authorisation from copyright-holders for the communication of their works to the public.
The Court found that mere act of browsing websites will not infringe copyright by reason of copies of works being created by the automatic computer processes involved. It must be noted that downloading or printing of material from websites falls outside the scope of this decision, and will likely require the authorisation of the copyright-holder, unless some other exception applies.
This is a common sense result which is consistent with the expectations of the public at large.
Although this case is not directly applicable to Australia, intellectual property protection (particularly in an internet context) is a global issue and it is reassuring to know that the EU has taken a sensible stance on this question.