Infringement due to creation of transient or temporary copies being made in course of transmission though legal by itself has been debated time and again. The latest in this series is Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited and others, in the Supreme Court of UK.
Overturning the decision of the lower courts which found infringement even when the content was merely viewed on websites while browsing, without authorisation from the right holder, the Supreme Court held that exception under Article 5.1 of EU Directive 2001/29/EC would apply to end-user viewing of web-pages and provided other conditions were satisfied, there was no infringement by merely viewing the pages.
In the present case, the appellant monitored news coverage, on behalf of clients and produced reports listing the results of a search of the index for those keywords provided by the client. If any site had a paywall, the user had to pay the required fee to use it. The monitoring report along with hyperlink to the article, opening words of the article etc was sent to the customer by email or he could access it on the service provider’s website. The lower court held that even to view the report on website, a user will require a licence.
Temporary copies created in internet cache
The Court opined that the end-user did not set out to make a copy of the web-page unless he chose to download it or print it out. His object was to only 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 judgement dwells at length on recent cases decided by CJEU and English courts. Basically applying the five tests laid down in Infopaq International that the act should be temporary, it should transient, it should be an integral part of the technological process, the sole purpose should be to enable transmission for a lawful use and that the act does not independent economic significance, the Court determined that there is no infringement. It did not find force in the respondents arguments that ‘temporary’ applied only to copies made during transmission and not to the internet cache of the enduser’s hard drive and on his screen.
Drawing from Football Premier League Case, the Court held that no rational distinction is to be made between viewing copyright material on a television screen and viewing the same material on a computer. Also there is no independent economic value to the end-user unless they download or print it. It found that that the storage and deletion of the copyright material should be automatic, as opposed to being dependent on ‘discretionary human intervention’. The respondent argued that it is possible to enlarge the cache, change settings were dismissed as irrelevant as they did not involve discretionary decision on part of the user.
Scope of Article 5.1 of the EU Directive
It noted that Article 5.1 necessarily operates to authorise certain copying which would otherwise be an infringement of the copyright owner’s rights. The article treats the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding the making of temporary copies within the electronic equipment employed. It stated that if it is an infringement merely to view copyright material, ordinary users who use browsers and search engines for private as well as commercial purposes could incur civil liability, unintentionally.
Reference to CJEU
It finally recommended that the issue should be referred to the CJEU to enable uniform application of law across the EU.