In a case lasting over 5 years, the Court of Justice of the European Union (the CJEU) ruled last week that the on-screen and cached copies made by an end-user in the course of viewing a website are temporary, transient or incidental in nature, and constitute an integral and essential part of a technological process. That being the case, those copies fall within an exemption in European copyright legislation that dates back to 2001, and which provides that those copies can be made without the permission of the copyright owner.
The case was a matter of commercial rather than academic interest for the parties concerned: the Newspaper Licensing Agency Limited (the NLA), a body set up to administer collective rights licensing on behalf of UK newspapers; media monitoring company Meltwater; and the Public Relations Consultants Association (PRCA).
The relevant issue originally before the High Court was whether the PR professionals who received Meltwater's reports (consisting of newspaper headlines and article abstracts) should have to pay a licence fee to view those reports on Meltwater's website and/or click on the links in those reports which led them to view the full articles on the website of the newspaper concerned. The High Court and subsequently the Court of Appeal ruled in favour of the NLA, finding that the existing temporary copies exception did not apply where it was not lawful for the end-user to have made that copy in the first place (a slightly circular argument you might think). The Supreme Court disagreed, concluding that the exception extended in principle to temporary copies made for the purpose of browsing by an unlicensed end-user. However, in the interests of harmonising copyright law across Europe, the Court referred the question of whether internet browsing was or was not covered by the temporary copying exception to the CJEU.
In a victory for common sense the Court reasoned that making it possible, in principle, for internet users to access works displayed on websites without the authorisation of the copyright holders did not unreasonably prejudice the legitimate interests of those rights holders, given that they could if necessary take action against the publishers of the websites concerned for any unauthorised publications.
Meltwater proudly declares on its website that it "believes in the importance of copyright, but will fight overreaching copyright claims in violation of basic rights of Meltwater clients, important internet principles, and common sense." The PRCA is also pleased that they "stood up for the PR industry -along with Meltwater - when everyone else rolled over". As for the NLA, they have put a brave face on the decision saying that "This will only have an impact if new services are developed in future where the agencies create a portal that their clients access to view the content; if that means the end user does not need to pay a licence fee then we would seek to increase the fees paid by Meltwater and other agencies."
Whatever the implications for the PR industry, however, the case provides some much needed legal clarity.
(This blog was also published by The Huffington Post here.)