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Unauthorised browsing of copyrighted material online is legitimate, says UK Supreme Court

The UK Supreme Court has asked the EU's highest court to rule on whether the temporary copies that computers make to allow material to be read online breach copyright laws.

The five judges of the Court unanimously said that if this copying only related to the viewing of content then copyright law would not be infringed, but that the situation would be different if internet users wanted to download or print material.

Reading online material on a computer involves the creation of a temporary copy, or cache, of the content on the computer. The judges said, though, that because this copying is necessary for the internet to work and was only temporary and "transient or incidental", the activity could be undertaken without requiring a licence from rights holders.

"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," Lord Sumption said on behalf of the Supreme Court judges. (24-page / 104KB PDF) "This seems an unacceptable result, which 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."

However, the Court has asked the Court of Justice of the European Union (CJEU) to make a definitive ruling on the issue after recognising that the issue has "a transnational dimension" with potential implications for "many millions of people across the EU".

Under EU copyright laws rights holders are entitled to charge licence fees to those that make temporary copies of their copyrighted works. But the Copyright Directive also provides that rights holders may not charge fees if those temporary copies are "an integral and essential part of a technological process whose sole purpose is to enable [either] a transmission in a network between third parties by an intermediary, or a lawful use of a [copyright] work", providing the copy has "no independent economic significance".

Recitals to the Directive, which may be used to interpret the formal articles in the text, state that the temporary copies exception should include "acts which enable browsing", if those acts "meet the conditions" set out in the exception.

The Supreme Court gave its provisional views on its reading of the Directive in a case involving media monitoring firm Meltwater, supported by the Public Relations Consultancy Association (PRCA), and the Newspaper Licensing Agency (NLA).

At earlier stages in the legal proceedings between the parties Meltwater was told that it needed to obtain a licence from the NLA to account for the use of publishers' copyrighted content by Meltwater users when the news aggregator provided snippets of content and links to articles to its customers. This 'end user' licence requirement was in addition to Meltwater obtaining a licence of its own to use the newspapers' content, the latter which Meltwater had accepted.

The NLA and Meltwater subsequently thrashed out the outline terms of the 'end user' licensing agreement to the satisfaction of the Copyright Tribunal last year.

However, now the Supreme Court has said that it is "very likely" that a separate 'end user' licence would not be required for Meltwater users if Meltwater provided its customers access to publishers' content via a page on its own website as opposed to including the information within an email to those customers.

"Nothing [under the 'temporary copies' exception to copyright law] affects the obligation of Meltwater to be licensed in order to upload copyright material onto their website or make non-temporary copies of it in some other way," Lord Sumption said in the ruling. "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 (although I am not deciding the point) 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," the judge said. "[The NLA] have lodged an alternative claim with the Copyright Tribunal on that basis. In my view 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."

The NLA had argued that 'caching' of content on internet users' computers meant that the process inherent in internet browsing involved more than making mere temporary copies of content. It cited the fact that users could adjust browser settings to extend the period in which content was stored or even leave their computers switched on to display a particular web page "indefinitely" as reasons why it felt browsing should not be said to provide a defence against infringement.

However, the Supreme Court said that it was "irrelevant" what "discretionary human intervention[s]" could be deployed to extend the period in which the information was copied, because it was still outside their control over "whether to retain the material in memory or not". That fact was determined by the "technological processes" inherent in internet browsing, the judges said.

"There is a difference, which is fundamental to the object of [the 'temporary copies' exception], between a discretionary decision to extend the duration of what remains an automatic process, and the storage of a copy of material in the course of the browsing in a manner which will ensure that it is permanent unless and until a discretionary decision is made to delete or destroy it," Lord Sumption said.

"If the mere fact that it is in principle possible to close down a computer, alter the browser settings to enlarge the internet cache or leave an image on screen indefinitely were enough to prevent [the 'temporary copies' exception] from applying, then it would never apply to internet browsing. This would frustrate the purpose of the legislation," the judge said.

Both Meltwater and the NLA professed to be pleased at the provisional outcome of the Supreme Court case and the fact matters have been referred to the CJEU.

“We are ... pleased to see that the Supreme Court acknowledged that if an end user of an alert service delivered as a web link (rather than by e-mail) were not required to pay a licence fee, then Meltwater’s licence fee would very likely be substantially higher – a view that the NLA expressed before the Copyright Tribunal last year," David Pugh, the NLA's managing director, said.

Jorn Lyssegen, chief executive of Meltwater, said: “We are very pleased that the Supreme Court overruled the previous rulings of the Court of Appeals and the High Court that the simple act of browsing the Internet could be copyright infringement. This ruling is an important step in modernizing the interpretation of UK copyright law and protects UK Internet users from overreaching copyright collectors.”

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