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In Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others  UKSC 18, 17 April 2013, PRCA appealed against a decision that a licence was required by its members to view media monitoring reports which were made available via a third party's website which monitored a large number of websites (Meltwater News). The PRCA's members would provide search terms based on key words and the monitoring reports generated would set out the opening words of any relevant articles together with a hyperlink to the website on which the article could be found. The reports would be temporarily saved on the member's screen and the issue was whether browsing such information this constituted infringement of copyright.
Article 2(a) of the Copyright Directive (2001/29/EC) requires Member States to provide for the "exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part" of any relevant works.
However, there is a defence against infringement contained in Article 5(1) of the Directive in relation to transient or incidental copying where the sole purpose is to transmit material in a network or allow other lawful uses. In addition, Article 5(5) states that the defence may only be applied in special cases which do not conflict with a normal exploitation of the work or other subject matter, and do not unreasonably prejudice the legitimate interests of the rights-holder.
Also of relevance to the issue was Recital 33 to the Directive:
"To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology ... to obtain data on the use of the information."
The Court had to consider whether browsing reports on Meltwater News' website, copies of which were saved to a hard drive and screen during browsing, fell within the defence set out in Article 5(1).
The UK Supreme Court was of the view that such browsing was caught by the defence in Article 5(1) and did not constitute infringement. Its view was based on very recent ECJ decisions on Article 5(1) which had decided that the exception was not limited to transmitting material but applied to any copies made for the sole purpose of allowing other lawful uses, which included browsing. In addition, use of copyright material was not unlawful just because it lacked the authorisation of the copyright owner.
However, due to the fact that the issue has an important EU wide dimension which could impact users of the internet across the EU, the Court made the decision to refer the matter to the European Court of Justice for a preliminary ruling.
Although the matter has been referred to the ECJ for a ruling, it is confidently expected that the ECJ will follow the Supreme Court's ruling given its earlier decisions and also to avoid a situation in which millions of non-commercial users are liable for copyright infringement due to browsing material which they had no way of knowing was unauthorised by its owner.
Accordingly, merely browsing internet material, even if uploaded illegally, is unlikely to be infringement, whilst downloading, printing or forwarding material for commercial advantage would be, as this goes outside the defence of Article 5(1).
John Warchus, Partner, Clarkslegal LLP
Tel: +44 118 953 3956
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