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Good news everyone: after 5 years, we now know that what we do every day is legal…No, seriously

Good news everyone: after 5 years, we now know that what we do every day is legal…No, seriously

We have been a bit slow at commenting the Meltwater ruling by the Court of Justice of the EU (CJEU) – aka Case C-360/13 Public Relations Consultants Association v Newspaper Licensing Agency Ltd, as we had the joy of attending a copyright event in Athens last week, organised by the Greek Presidency of the EU (we will blog separately on that).

It was actually quite entertaining to listen to all the rightholders’ views expressed at that Athens event – and of which one key message was: ‘the current copyright framework is peachy as it is: don’t even think about reviewing it’ – and to read at the same time on my mobile phone that it just took the CJEU five (5!) years to judge that a habit that allows citizens to communicate and access information and knowledge on the one hand and companies to do business on the other, is after all legal, even if publishers may have claimed the contrary. FIVE YEARS TO DECLARE BROWSING LEGAL UNDER EU COPYRIGHT LAW!

Obviously, C4C is extremely happy that the CJEU decided that cached/temporary copies are lawful. Indeed, any ruling to the contrary would basically have meant browsing was illegal and the Internet would have to be shut down in the EU, a situation which could have led to a few issues, if only as regards us writing this blog post. Or as Jorn Lyssegen from Meltwater aptly put it: “Without this decision, millions of European internet users would be infringing on the law every day with the simple act of opening their browser and would have left the door open for publishers of any form of internet content to claim copyright fees whenever a web page is viewed“.

But let’s step back for a second to see what put the CJEU in the absurd situation of having to make sanity prevail.

Background to the Case

This ruling is the result of a five year litigation process opposing the UK Newspaper Licensing Agency Ltd. (NLA) to the Public Relations Consultants Association and Meltwater, a company providing an online media monitoring service called Meltwater News, that sent clients headlines, hyperlinks and extracts to online articles on publishers’ website.

The NLA decided that the end-users of Meltwater News needed to pay a licence for the use of the service, as on-screen and cached copies of works in which copyright subsisted would be made on the end-users’ computers when they accessed and browsed publishers’ websites. It was followed in its reasoning by both the UK High Court and Court of Appeal, before the UK Supreme Court decided to refer the whole issue to the CJEU, as it considered the matter was of importance to millions of users, not only in the UK but across the EU.

The Legal Issue at Stake

The UK Supreme Court quite accurately summarised the issue as follows:

The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and also in the internet “cache” on the hard disk. (…) 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.”

In other words: do copies made as a consequence of browsing require the authorisation of the rightholder or do they benefit from the provisions of Article 5(1) of the EU Infosoc Directive (2001/29/EC) that establishes the transient copy exception and stipulates that:

[t]emporary acts of reproduction…which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right.”

Looking at it from another perspective, the question at stake was: does Article 5(1) only apply to the internal plumbing of the Internet or does it also apply to cacking and transient copies that occur on the end-users’ devices.

The CJEU ruling

The CJEU thankfully considered that any transient copies that are created as a result of browsing a website fulfill the 3 conditions required for the Article 5(1) exception to apply, namely (1) they are temporary, (2) they are transient or incidental and (3) they are necessary for the technical operation performed. More specifically, the CJEU stated that:

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.

Conclusion

After Svensson, the CJEU has yet again had to rule at the initiative of a litigation instigated by publishers to ensure that citizens can continue using the Internet in the EU. Aside from the fact that the ruling does represent a victory for the Internet (and sanity), one can only wonder how many other holes publishers and rightholders in general will attempt to exploit and how many additional years will be required to ensure the Internet is confirmed as legal for EU citizens and companies to use.

On the FixCopyright.eu website, we point out that the copyright rules in the EU are out of sync with reality and leave too much room for interpretation. I think this case clearly demonstrates that more clarity is required to avoid pointless and dangerous litigations. Or maybe we can just hope some of these rightholders will one day decide to embrace the 21st Century. ‘L’espoir fait vicre’, as the French say.

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