Does copyright control browsing? Meltwater in the UK Supreme Court.

[Updated with CJEU judgment of 5 June 2014]
Back in July 2011 I commented on the Court of Appeal judgment in NLA v Meltwater and explained how the reach of digital copyright had accidentally been increased beyond that in the offline world.  That was as a result of accepting that transient and temporary copies created in computer memory count as copies for copyright purposes.  This potentially extended copyright control to all user activities involving a computer, including browsing the web. 

The Public Relations Consultants Association subsequently appealed the Meltwater decision to the UK Supreme Court, which has now referred to the EU Court of Justice the question of whether browsing a website requires the permission of the copyright owner.

Technically, the question is whether browsing falls within the 'temporary copies' exception of Article 5.1 of the EU Copyright in the Information Society Directive.  Lord Sumption, who gave the judgment of the UKSC, concluded that browsing did fall within the exception, and so did not require the permission of the copyright owner.  However he recognised that the issue has a transnational dimension and has important implications for many millions of people across the EU making use of the internet.  That made it desirable that the decision be referred to the CJEU, so that the critical point might be resolved in a manner that would apply uniformly across the EU.

From a broader perspective the judgment is of particular interest for the extent to which the Supreme Court recognised the disparity, if browsing does require the copyright owner's permission, between the reach of copyright offline and online.  The judgment opens by pointing out that:

"Broadly speaking, it is an infringement to make or distribute copies or adaptations of a protected work. Merely viewing or reading it is not an infringement. A person who reads a pirated copy of a protected book or views a forgery of a protected painting commits no infringement although the person who sold him the book or forged the painting may do."

It goes on to explain that in the course of the ordinary use of the internet:

"[the user's] object is to view the material. The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner."

Lord Sumption observed that the question:

"potentially affects millions of non-commercial users of the internet who may, no doubt unwittingly, be incurring civil liability by viewing copyright material on the internet without the authority of the rights owner, for example because it has been unlawfully uploaded by a third party. Similar issues arise when viewers watch a broadcast on a digital television or a subscription television programme via a set-top box."

Having analysed the relevant EU caselaw and concluded that browsing fell within the temporary copies exception, Lord Sumption addressed the consequences of his conclusion.  He said:

"We were pressed with the argument that if the viewing of copyright material on a web-page did not require a licence from the copyright owner, he would be exposed to large-scale piracy of a kind which would be difficult to detect or prevent.

I am not persuaded by this argument. … it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form. This state of affairs, which is recognised in the enumeration of the copyright owner's rights in articles 2, 3 and 4 of the Directive, has never been thought inconsistent with a high level of protection for intellectual property.

All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed.

… [I]f 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 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."

…  [I]f merely viewing a web-page is not an infringement, that does not leave the copyright owner without effective remedies against pirates. It simply means that his remedy must be found against others who on the face of it are more obviously at fault. Nothing in article 5.1 impairs the copyright owner's right to proceed against those who unlawfully upload copyright material onto the internet, just as the copyright owner has always been entitled to proceed against those who make or distribute pirated copies of books, films, music or other protected works."

These passages exhibit a strong policy interest in achieving functional equivalence: for copyright to apply to the internet as far as possible in the same way that it did to physical copies before the digital revolution.  In that sense the Supreme Court judgment has similarities to the Canadian Supreme Court Copyright Pentalogy and the CJEU decision in Usedsoft v Oracle.

The approach articulated by Lord Sumption is the opposite of that stated by Proudman J at first instance: "The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music." Lord Sumption, albeit with the benefit of later CJEU decisions in FAPL v QC Leisure and Infopaq II that were not available to Proudman J or the Court of Appeal, has made a clear statement that there is no policy reason why mere watching and listening (as opposed to downloading or printing) should be regarded as an infringement in the online world any more than in the offline world.  We now await finding out whether the CJEU agrees. [Yes, it does.]