Public Relations Consultants Association Ltd v Newspaper Licensing Authority and others
Newspaper Licensing Authority v Meltwater [2013] UKSC 18
The Court of Justice of the European Union – Judgment made on 5 June 2014 – Temporary acts of (copyright) reproduction within section 28A of the Copyright Deigns and Patents Act 1988
This blog is an update from those previous, dealing with the above Meltwater Judgment of the UK Supreme Court (see links below). The facts can be found in the previous blogs on this subject; however it is clear that the decision is of great assistance to the consultant company (Meltwater) and its Association; the case will presumably be remitted back to the UK Court to finalise the issue of costs – what appears to be a substantial victory in terms of their accessing temporary copies of copyright works. In the writers’ view this appears to be a logical result in terms of the general functionality of the Internet, but the writer anticipates that ‘Paywalls’ and other secure access portals to copyright works, such as News media will perhaps proliferate to a greater extent. Readers will recall the gist of the UK Supreme Court decision, namely that viewing the Meltwater report(s) on the website appears to be covered by the ‘temporary copies’ exception within section 28A of the Copyright Designs and Patents Act 1988.
The reference to the Court of Justice of the European Union
It will also hopefully be recalled (from the previous blog) that Lord Sumption stated that the issue in the appeal has a ‘transnational dimension’ and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility.’
The questions referred by the UK Supreme Court were as follows (see paragraph 20 of the CJEU judgment):
In circumstances where :
an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it ;
copies of that web-page are automatically made on screen and in the internet “cache” on the end-user’s hard disk;
the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;
the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;
the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer;
and the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;
Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC1 ?
____________
1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
The European Court of Justice’ answer:
On those grounds the Court (Fourth Chamber hereby rules:
“Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning 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, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.”
The following are important to note from the CJEU Judgment:
1. Paragraph 26: the on-screen and cached copies from a computer are ‘temporary in nature;
2. Paragraph 33: on-screen and cached copies are regarded as ‘an integral part of the technological process’ at issue in the main (ie.UK) proceedings
3. Paragraph 37: the on-screen copies and the cached copies are ‘an essential part of the technological process’ at issue in the UK proceedings;
4. Paragraph 46: the period during which the on-screen copies remain in existence is limited to what is necessary for the proper functioning of the technical process used for viewing websites. Consequently the copies must be regarded as ‘transient’.
5. Paragraph 54, 60 and 63: Art 5(5) of the Directive (cf. the exemption applying provided it ‘does not conflict with a normal exploitation of the work and…not unreasonably prejudice the legitimate interests of the rights holders’ was not breached and could therefore be made without authorisation from the copyright holders.
The CJEU judgment (5 June 2014) can be found at:
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1402053921977&uri=CELEX:62013CJ0360
The Court of Appeal decision can be found at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/890.html&query=newspaper+and+licensing&method=boolean
The decision at first instance, of Mrs Justice Proudman can be found at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2010/3099.html&query=newspaper+and+licensing&method=boolean
The UK Supreme Court Press Summary can be found at:
Click to access UKSC_2011_0202_PressSummary.pdf
The UK Supreme Court decision (lead judgment by Lord Sumption) can be found at:
Click to access UKSC_2011_0202_Judgment.pdf
and on the Bailii Site at:
Click to access 18.pdf
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