Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18

The Supreme Court held that temporary copies made on screen and in the internet cache when an end-user merely browses a web page fall within the article 5.1 temporary copying exception (s.28A CDPA 1988), so no licence is needed. Given the EU-wide importance, it referred the question to the CJEU before making any order.

Facts

The appellant, the Public Relations Consultants Association Limited, represented public relations professionals who monitor news coverage for clients using online media monitoring services supplied by the Meltwater group. Meltwater used automated software to index words appearing on newspaper websites. Customers supplied search terms and Meltwater generated monitoring reports containing, for each hit, the opening words of the article, the keyword with surrounding words, and a hyperlink in the form of the headline. Reports were sent by email or accessed on Meltwater’s website.

It was common ground that Meltwater held a licence from the newspaper publishers, on terms settled by the Copyright Tribunal, and that customers needed a licence to receive the service in its existing email form, because the emailed copy is stored on the recipient’s hard drive until deleted. The live question was whether customers would need a licence if the report were merely viewed on Meltwater’s website. Proudman J held that they would, and the Court of Appeal ([2011] EWCA Civ 890) agreed.

Lord Sumption explained the technology: viewing a web page necessarily generates a copy on screen (lasting until the user moves away) and a copy in the internet cache on the hard disk, which is overwritten in the ordinary course. Neither Premier League nor Infopaq II had been decided when the courts below gave judgment.

Issues

The central issue was whether the temporary copies generated on screen and in the internet cache by an end-user’s ordinary browsing of copyright material on the internet fall within the exception in article 5.1 of Directive 2001/29/EC (given effect by section 28A of the Copyright, Designs and Patents Act 1988), so that no licence from the rightholder is required. That required the court to consider whether article 5.1 is confined to copies made in the course of transmission through a network, and whether the five conditions identified in the CJEU case law (temporary; transient or incidental; integral and essential part of a technological process; sole purpose of enabling transmission or a lawful use; no independent economic significance), together with article 5.5, were satisfied.

Arguments

Mr Howe QC, for the Newspaper Licensing Agency and the other respondents, argued that article 5.1 applied only to copies made during transmission within a network, such as in the caches of intermediate routers and proxy servers, and not to end-user copies. He further argued that cached copies were not “temporary” or “transient” because the user could shut down the computer (leaving material in the cache indefinitely), enlarge the cache by adjusting browser settings, or leave a page on screen indefinitely — all instances of discretionary human intervention. The court was also pressed with the policy argument that, absent a licence requirement, rightholders would be exposed to large-scale piracy that would be difficult to detect or prevent.

The appellant’s case, as reflected in the court’s reasoning, was that the copies are an inevitable incident of viewing, that lawful use under article 5.1(b) does not depend on the rightholder’s authorisation, and that the copies have no independent economic significance beyond the act of reading the material on screen.

Judgment

Lord Sumption gave the sole reasoned judgment, with which Lord Neuberger, Lord Kerr, Lord Clarke and Lord Carnwath agreed. He first traced the origins of the Directive in the 1995 Green Paper and the 1997 Commission proposal, noting the tension between maintaining a high level of protection for intellectual property and avoiding the over-rigid application of copyright law devised for physical media, which would retard the development of the internet. He emphasised recital 33, which expressly contemplates that the exception should include acts enabling browsing and caching.

He analysed three CJEU decisions: Infopaq International A/S v Danske Dagblades Forening (Case C-5/08) [2010] FSR 20 (“Infopaq I”), Football Association Premier League Ltd v QC Leisure (Case C-403/08) and Karen Murphy v Media Protection Services Ltd (Case C-429/08) [2012] 1 CMLR 29, and Infopaq International A/S v Danske Dagblades Forening (Case C-302/10) [2012] EUECJ C-302/10 (“Infopaq II”). He cautioned that the five conditions listed in Infopaq I are a paraphrase:

they are not free-standing requirements. They are overlapping and repetitive, and each of them colours the meaning of the others. They have to be read together so as to achieve the combined purpose of all of them.

From the case law he distilled six propositions: that the exception covers copies that are an integral and necessary part of a technological process (necessary if the process could not function “correctly and efficiently” without them); that “temporary” requires automatic storage and deletion, not dependent on discretionary human intervention, and duration limited to what the process requires; that the exception extends beyond transmission to other lawful uses including browsing; that a use is lawful if consistent with EU legislation governing the reproduction right, whether or not authorised by the rightholder; that “independent economic significance” means value additional to that derived from mere transmission or viewing; and that, if those conditions are met, article 5.5 imposes no additional restriction, though it requires article 5.1 to be construed as narrowly as is consistent with its purpose.

Applying this, Lord Sumption rejected the respondents’ primary submission that article 5.1 is confined to network transmission: “In my opinion, this is an impossible contention.” He reasoned that recital 33 expressly embraces browsing, that “Browsing is not part of the process of transmission. It is the use of an internet browser by an end-user to view web pages”, and that the submission was directly contradicted by Premier League, where Mrs Murphy was an end-user consuming the product. He held there is “no rational distinction to be made between viewing copyright material on a television screen and viewing the same material on a computer.”

The third condition was plainly satisfied: caching and screen copies are basic features of modern computer design and browsing could not function correctly and efficiently without them. The fourth was satisfied because lawfulness does not depend on the rightholder’s authorisation. The fifth was satisfied because, unless the customer downloads or prints the material, the sole economic value derived is from reading it on screen.

On “temporary” and “transient” (treated as synonymous), the storage is the automatic result of accessing a page and deletion the automatic result of lapse of time and continued browser use. The respondents’ examples of human intervention were rejected as irrelevant because they did not involve a discretionary decision whether to retain the material; they were “merely rather artificial ways of extending the duration of the relevant ‘technological processes'”, and if such possibilities defeated the exception “it would never apply to internet browsing”, frustrating the legislative purpose. The copies were also “incidental”, and article 5.5 was accordingly satisfied.

On the piracy argument, Lord Sumption observed that viewing an infringing article in physical form has never been an infringement, that treating browsing as infringement would mean that “those who browse the internet are likely unintentionally to incur civil liability”, a result he described as “an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU”. He noted that Meltwater still needs a licence to upload, that the licence fee chargeable to Meltwater may well be substantially higher (a point he expressly did not decide), and that remedies remain against those who unlawfully upload.

The courts below, he held, could not have reached their conclusions had they had the benefit of Premier League and Infopaq II, whose broader meaning of “lawful use” makes it impossible to confine the exception “to the internal plumbing of the internet”.

Nevertheless, given the transnational dimension and the implications for millions of users, the court decided to refer to the CJEU the question whether the first three requirements of article 5.1 are satisfied by the technical features described, having regard in particular to the persistence of cached copies after the browsing session and of screen copies until the session ends. Counsel were invited to comment on the proposed question and to prepare, and if possible agree, a draft reference.

Implications

The decision sets out the Supreme Court’s authoritative reading of article 5.1 and section 28A: on-screen and cached copies created by ordinary browsing are within the temporary copies exception, so a mere viewer of copyright material online does not infringe the reproduction right, even where the material was uploaded without authority. Lawfulness under article 5.1(b) does not require the rightholder’s consent; it requires only that the use is not restricted by applicable legislation governing the reproduction right.

The reasoning matters to online content aggregators and their customers, to publishers negotiating licences, and to ordinary internet users. Practically, the judgment favours a single licence fee payable by the party uploading material rather than fragmented collection from end-users, though the level of Meltwater’s licence fee was expressly left to the Copyright Tribunal.

Important limits should be noted. The conclusion does not extend to downloading or printing, which remain infringing acts absent a licence, nor does it affect the separate communication right under article 3 (as Premier League itself shows) or a rightholder’s remedies against unlawful uploaders. The court’s analysis rested on ordinary browsing technology, not on forensic techniques for recovering deleted material. Crucially, the court did not finally dispose of the appeal: it made no order and referred the question to the CJEU, so the conclusions expressed, though fully reasoned, awaited confirmation in a ruling binding across the EU.

Verdict: The Supreme Court (Lord Sumption, with Lord Neuberger, Lord Kerr, Lord Clarke and Lord Carnwath agreeing) concluded that the temporary copies made on screen and in the internet cache by an end-user browsing a website satisfy the conditions of article 5.1 (and article 5.5) of Directive 2001/29/EC, so that Meltwater’s customers would not require a licence merely to view the monitoring reports on Meltwater’s website — contrary to the decisions of Proudman J and the Court of Appeal. However, rather than making any order on the appeal, the court decided to refer to the Court of Justice of the European Union for a preliminary ruling the question whether the requirements that acts of reproduction be temporary, transient or incidental, and an integral and essential part of a technological process are satisfied by the technical features described, and invited counsel to comment on and prepare a draft reference.

Source: Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18