Viewing freely available copyrighted material on websites does not require rights holders' permission, rules CJEU

Out-Law News | 05 Jun 2014 | 2:57 pm | 3 min. read

Browsing freely accessible copyrighted content on the internet is not an act of copyright infringement even if a rights holder objects to the activity, the EU's highest court has ruled.

The Court of Justice of the EU (CJEU) said the technical process behind displaying content on users' screens and storing the content as a 'cache' file on a computer's hard drive does involve making copies of content but that it falls within an EU copyright law exception and so can be done without rights holders' permission.

"[EU copyright laws] ... 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 ... and that they may therefore be made without the authorisation of the copyright holders," the CJEU said in a new judgment.

The Court said that the temporary copying exception under EU copyright laws could be applied to the practice of internet browsing because the activity constitutes a "special case" that does "not conflict with a normal exploitation" of copyrighted material and does not "unreasonably prejudice the legitimate interests of the rightholder".

The CJEU said that on-screen copies and cached copies of copyrighted works made available on the internet "are created only for the purpose of viewing websites" and so constitute a 'special case'. It said that the legitimate interests of rights holders are "properly safeguarded" by virtue of the fact that they have already consented to their material appearing on the websites being visited.

"The works are made available to internet users by the publishers of the websites, those publishers being required, under [EU copyright laws], to obtain authorisation from the copyright holders concerned, since that making available constitutes a communication to the public within the meaning of that article," the CJEU said in its judgment. "In those circumstances, there is no justification for requiring internet users to obtain another authorisation allowing them to avail themselves of the same communication as that already authorised by the copyright holder in question."

The Court said that the copies made of copyrighted material during the process of internet browsing do not conflict with the normal exploitation of those works because the technical process behind the copying is part of the normal way internet users "avail themselves of the communication to the public made by the publisher of the website concerned".

"Given that the creation of the copies in question forms part of such viewing, it cannot operate to the detriment of such an exploitation of the works," the CJEU said.

The CJEU had been asked to provide its opinion in the case by the UK's Supreme Court. The Supreme Court had given its provisional view that because the copying involved in the process of internet browsing was necessary for the internet to work and was only temporary and "transient or incidental" in nature, the activity could be undertaken without requiring a licence from rights holders.

However, the Supreme Court sought a definite ruling from the CJEU on the matter after after recognising that the issue had "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".

The legitimacy of internet browsing without copyright owners' consent is significant to a licensing dispute between media monitoring firm Meltwater and the Newspaper Licensing Agency (NLA), which the Supreme Court has provisionally ruled on and will now have to issue a final judgment about.

At particular issue in the dispute is whether Meltwater's customers would require an 'end user' licence 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. Meltwater has previously accepted that it needs a separate licence from the NLA to cover its own use of the newspapers' content.

Intellectual property law expert Iain Connor at Pinsent Masons, the law firm behind Out-Law.com, said the ruling was a "common sense decision". 

"As long as the content has been made available lawfully on the website, an end user to whom the website is directed must be allowed to view it on their own device," Connor said. "It remains a problem for rights holders that consumers believe because content is on the internet it is ‘free’ to use for other purposes which of course is not the case. This decision makes clear that in order to fall within this exception the use must not conflict with the legitimate interests of the rights holder."