Internet cache copies don’t need authorization of the copyright holders
Chamber of the EU Court of Justice on 5 June 2014 holds judgement in case C-360/13 between Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and others being requested for a preliminary ruling under Article 267 TFEU concerning the interpretation of Article 5(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001.
On whether the viewing of websites content involving copies on the internet cache should be subdued to authorization from copyright holders, the Court rules 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, transient or incidental in nature” and therefore they may be made without the authorization of the copyright holders.
UK main communication agencies working on distinct levels. The Public Relation Consultant Association
The fact involves three different subjects on their respective grounds and interests.
Public Relations Consultants Association was founded in 1969 and is an association of public relations professionals representing individuals, freelancers and teams who provides consultancies and in-house communications. It is active in the field of promoting public relations and communications, helping to maximize work and organization.
Its goal is to raise standards offered in public relations and communications by the means of targeted formation. It creates new networking opportunities and enhances best practices in communications, providing its members with industry data and facilities as professional charter and codes of conduct or training.
For its service, Public Relations Consultants Association has been entitled to represent more than 250 consultancy agency members from around the world, whose majority is the top 100 UK consultancies. it represents in-house communications teams from multinationals, charities, and public sector organizations too.
Meltwater works as a search engine and monitors reports on press articles
Those professionals resort to Meltwater Group services too. Meltwater Group is a Norwegian private company founded in 2001 whose services are related to software and technology. Specifically, it offers its clients search engine technology, cloud computing and talent management software. Among its almost 20.000 clients located across five continents, Meltwater Group has Public Relations Consultants Association.
To this client, Meltwater provides a media monitoring services called Meltwater News, making them available a large number of online articles with emails containing headlines, hyperlinks or short extracts, helping to monitor reports on certain online press articles on the basis of specific keywords.
Newspaper Licensing Agency protecting high quality of journalism with copyrights on paper and online press contents
The third actor on stage is Newspaper Licensing Agency whose task is providing collective licensing of newspaper content to publisher of newspapers in the United Kingdom as their effective members.
Eight national newspapers in 1996 decided to establish the agency to protect the industry’s copyright with the creation of media access. It works enabling media monitoring agencies, Public Relations consultancies and other media organizations to reproduce thousands of printed and online titles with prior permission instead of negotiating copyright charges directly with publishers, reducing time and costs related to negotiation.
They even provide media monitoring industry, since 2006, a higher quality content reproduction service, a sort of improved scanning, by eClips database. This improvement bolstered NLA client database, with more than 9.000 bodies between organizations and monitoring agencies in ten countries.
Newspaper Licensing Agency could be considered an almost non-profit entity since eighty per cent of its revenues are reconverted as investments into the publishing industry.
PRCA and Meltwater monitoring reports without authorization of copyright holders
As NLA states that the task of maintaining high quality standards of journalism can be obtained only protecting published contents by copyrights, Public Relations Consultants Association publicly declares that its goal is to fight NLA’s digital license.
This is the reason why, having NLA noticed that Meltwater was providing its clients with media monitoring service without authorization from the copyright holders, it decided to sue Meltwater and PRCA for copyright infringement.
While Meltwater agreed to enter into a web database license, PRCA refused to recognize the need of a prior license to get monitoring reports.
The Supreme Court of United Kingdom requests preliminary ruling to CJEU
Newspaper Licensing Agency Ltd sues Public Relations Consultants Association Ltd before High Court of Justice of England and Wales, Chancery Division, and the Court of Appeal of England and Wales. Public Relations Consultants Association Ltd appealed before Supreme Court of the United Kingdom. The UK Court, by decision of 24 June 2013, received at the EU Court on 27 June 2013, requested preliminary ruling under Article 267 TFEU. The EU Court of Justice holds decision on 5 June 2014.
Arguments of Public Relation Consultant Association and of Newspaper Licensing Agency over copyright
Public Relations Consultants Association claims that its members do not need authorization or license of copyright holders to view monitoring reports on Meltwater’s website.
Newspaper Licensing Agency contends that even viewing monitoring reports on a third party’s website requires authorization of copyright holders since it produces on-screen copies and cached copied on the user’s computer hard disk. Having these copies to be considered reproductions within the meaning of Article 2 of Directive 2001/79, they do not benefit of exemption pursuant to Article 5(1) of the same Directive.
The EU Court of Justice denies the need of prior consent of copyright holders
The EU Court of Justice recognizes that on-screen copies and cache copies made by an end-user while browsing web, satisfy the conditions laid down in Article 5(5) of Directive 2001/29, and that they may therefore be made without the authorization of the copyright holders.
The judgement is framed within legal background of Directive 2001/29 whose provisions aim to adapt copyright related rights to economic realities and new forms of exploitation while granting high levels of protection. Under Directive’s provisions, the exclusive right of reproduction is lawful when authorized by law and rightsholders.
The Article 5(1) of Directive 2001/29 was transposed into UK law by section 28A of the Copyright, Designs and Patents Act 1988.
The Court is called to a decision whether a user viewing websites’ content, and therefore automatically creating on-screen copies and cache copies, commits infringement of copyright unless he has authorization of the right holders.
The statement of the referring UK Court is in line with EU Court conclusions
As the referring UK Court stated, creation of such copies is part of the technical process behind browsing the internet – no downloading or printing needed – and accessing a website makes these copies to be automatically reproduced. These copies remain inside the computer’s memory just the duration of the browsing and if the user does not provide himself to delete them, after a short lapse of time they are replaced by other content’s copies. So, they can be called an incidental consequence of the internet usage.
The UK referring Court concluded that as the Article 5 of the Directive within copyright protection allows temporary acts of reproduction “which are transient or incidental, which are 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) lawful use of a work or other subject-matter to be made, and which have no independent economic significance”, conserving on-screen copies and cache copies without rightsholders permission do not infringe any copyright protection law.
All the conditions laid down in Article 5(5) of Directive 2001/29 are met
To the purpose of ensuring the uniform application of EU law throughout the territory of the European Union, the Court of Justice observes that the first condition carried out by Directive, the reproduction to be temporary in nature, is addressed by the fact that on-screen copies are automatically deleted when the internet user moves away from the website viewed and cached copies are automatically replaced by other content after a certain time.
The condition of the reproduction to be an integral and essential part of a technological process, without manual or human intervention, is met since the whole process of browsing internet wouldn’t be functioning correctly and efficiently without caches.
The condition of reproduction that must be either transient or incidental is addressed by the fact that copies remain in existence only for the duration of the technological process and that internet users cannot create the cached copies outside of that process.
Being the creation of those copies a part of the technological process of viewing a website, specifically the content that the published of the website wants to be communicated to the public, there is no reason for the user to obtain an authorization to view the content.
The decision applies only to browsing without downloading or printing contents
As EU Court has ruled against both UK lower courts decisions but in line with UK Supreme Court, end-users of sites providing services of monitoring web articles do not need previous authorization to store on-screen or cache copies inside their computers since it is within exception pursuant to Article 5(1) of the Copyright Directive 2001/29/EC.
EU Court has developed the principle to make it applicable across EU internet users, that from now on can rely on the certainty that their browsing websites does not to infringe copyright. The first consequence is that NLA should no more require payment from end-users for activities not covered by copyright or license.
It should be underlined how the decision is related only to browsing websites and not to downloading or printing contents from websites, which is still an activity legitimated only by the permission of the copyright owner.
US Court ruled the opposite way for the same case against Meltwater
Curiously, the same case was held before the US Court against the same Defendant, Meltwater Group, sued not by a UK copyright association but by US Associated Press. As for the case discussed before EU Court, the matter involved legality of temporary copies stored into clients’ computers to whom Meltwater was offering online media monitoring services. However, US Court ruled the activity as unlawful under the “fair use” doctrine.