Landmark Copyright Decision the Meltwater Case

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After 5 years of fierce litigation the Court of Justice of the European Union (CJEU) has held that on-screen and cached copies of websites generated by users whilst browsing the internet will not infringe the copyright of publishers and therefore can be done without authorisation or a license from the right holder.

Background

Meltwater provided an online media monitoring service named Meltwater News. Subscribers would receive a report containing: the headline, an extract of the article and a hyperlink to the publisher's website. The Newspaper Licensing Agency (NLA) brought proceedings against Meltwater and the Public Relations Consultants Association (PRCA) for copyright infringement. The basis of their claim was that copyright subsisted in the cached copies of the works which saved automatically on to user's computer whilst they were browsing the web. As such NLA contended that licenses were required.

At first instance the High Court held that users of the service did require a licence from the NLA to avoid infringing copyright. The Court of Appeal upheld the High Court's judgment on the basis that the temporary copying defence under Article 5(1) Directive 2001/29/EC (the Directive) had not been made out. The case culminated in the Supreme Court of Justice who found that the temporary copying exemption was applicable. The Supreme Court referred the issue to the CJEU for a preliminary judgment.

Decision

The primary question referred to the CJEU was whether cached and on-screen copies, generated in the course of browsing, satisfied the criteria for temporary copy exemption under Article 5(1) of the Directive. Article 5(1) stipulates:

“Temporary acts of reproduction … which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance“

Accordingly copies must be: temporary; transient or incidental; an integral or essential part of a technological process; have a sole purpose to enable a transmission in a network of a work or other subject matter; and have no independent economic significance.

The CJEU found that both on-screen and cached copies were temporary within the meaning of the Directive. The requirement of transience was satisfied with regard to on-screen copies within the meaning of the Directive on the basis that an act is transient if its duration was limited to what was necessary in order for the technical process to work properly. Thus, the fact that on-screen or cached copies subsisted for the period the user's browser was open was immaterial because during this period the technical process used for viewing the site remained active. Cached copies were held to be incidental of the technical process used as they did not exist independently of internet browsing. The CJEU held that the requirement that temporary copies had to be integral or an essential part of a technological process was also fulfilled, finding that “…the technological process required to browse the internet could not function ‘correctly and efficiently’ without the acts of reproduction concerned” The CJEU therefore affirmed the decision of the Supreme Court finding that both the on-screen copies and the cached copies satisfied the requirements of Article 5(1) of the Directive.

Accordingly, internet users who read online articles without downloading them do not infringe the publisher’s copyright providing that the website provider was authorised to provide access to the content. This decision is limited to online browsing and does not legitimise other forms of downloading, printing or distribution without the permission of the copyright owner.

For more information about copyright infringement, online publishing or protecting your intellectual rights please contact Blake Morgan's intellectual property team.

For the official transcript please click here.