[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.
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.]
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