[x-pubpol] UK Court in Meltwater Case says temporary copies on web not copyright infringement

[Joly MacFie]

(via Judith Dornstein(

http://www.wragge.com/alert_9880.asp

The Newspaper Licensing Agency v Meltwater: an internet copyright case with
"implications for many millions"

The English Supreme Court has said that temporary copies made automatically
when browsing the web should not usually infringe copyright. As the issue
is of importance to everyone who uses the internet, the court has referred
it to the Court of Justice of the European Union (CJEU).

Meltwater provides an online newspaper "clippings" service which provides
brief extracts from newspaper articles, and links to the articles, against
a subscriber's search terms. It sends reports by email to its subscribers
or provides them with online access to them. The issue for the court was
whether if Meltwater only provided its reports online its subscribers would
still need a licence to view them.

The question turns on interpretation of an exception to copyright
infringement for "temporary copies" under article 5.1 of the "InfoSoc"
Directive (2001/29/EC). Broadly, article 5.1 permits temporary copies
automatically produced as an integral part of a technological process.

The English High Court and Court of Appeal have previously decided, in the
Newspaper Licensing Agency's favour, that this does not apply to temporary
copies made without the copyright owner's permission. This is because the
copies are made as a result of a deliberate decision by the user, and are
not lawful copies.

The Supreme Court has now reviewed decisions of the CJEU made since the
earlier decisions in this case and has said that those earlier decisions
are no longer sustainable. Once it is accepted that the purpose of article
5.1 is to enable internet browsing, the interpretation made of it by the
High Court and the Court of Appeal unravels and is too restrictive.

For instance, in the Greek-TV-decoder-in-a-pub case (*Karen Murphy v Media
Protection Services Ltd*
(C-429/08<http://www.bailii.org/eu/cases/EUECJ/2011/C42908.htm>)
the CJEU established that, for the purposes of article 5.1, "a use should
be considered lawful where it is authorised by the right holder or where it
is not restricted by the applicable legislation". A use of copyright
material is therefore "lawful" if it is consistent with EU legislation
governing the reproduction right (including article 5.1 itself). In the
Supreme Court's view, "part of the purpose of article 5.1 is to authorise
the making of copies to enable the end-user to view copyright material on
the internet."

There are other criteria: the storage and deletion of the copyright
material must be completely automatic, and the copy must not exist for any
longer than is necessary for the technological process. In practice, when
viewing a website, temporary copies remain in a device's cache until they
are overlaid with other material, and the copy on a user's screen may
remain there for an indefinite period, depending on what the user does.
However, this can all be said to be part of the technological process and
it is clear the Supreme Court considers that article 5.1 should apply in
these circumstances.

The application of article 5.1 to ordinary internet browsing has "important
implications for many millions of people across the EU". To ensure a
uniform approach the Supreme Court has decided to make a reference to the
CJEU.

As the Supreme Court noted, "if it is an infringement merely to view
copyright material, without downloading or printing out, then those who
browse the internet are likely unintentionally to incur civil liability, at
least in principle, by merely coming upon a web-page containing copyright
material in the course of browsing. This ...would make infringers of many
millions of ordinary users of the internet across the EU who use browsers
and search engines for private as well as commercial purposes".

Finally, echoing the CJEU's approach in the Karen Murphy case and theUsedsoft
case <http://www.wragge.com/analysis_9667.asp>, the Supreme Court was not
concerned by the argument that its decision would upset the right owners'
current business model. It stated the following:

"At the moment, the licence fee payable by Meltwater is fixed on the basis
that its customers need a licence of their own from the publishers and that
the service will be supplied only to end-users who have one. It seems very
likely ...that the licence fee chargeable to Meltwater will be
substantially higher if end-users do not need a licence because on that
footing the value of the rights for which Meltwater is licensed will be
significantly higher... it is altogether more satisfactory that a single
large licence fee should be payable representing the value to the person
who puts the material onto the internet, than that tiny sums should be
separately collectable from hundreds (in other cases it may be millions) of
internet viewers".

Thanks for Nick Cunningham
(nick_cunningham at wragge.com<https://mail.google.com/mail/?view=cm&fs=1&tf=1&to=nick_cunningham@wragge.com>)
and Bonita Trimmer
(bonita_trimmer at wragge.com<https://mail.google.com/mail/?view=cm&fs=1&tf=1&to=bonita_trimmer@wragge.com>)
for preparing this alert.
-- 
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Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
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