58 law
Copyright infringement – Can you lawfully view this article online?
Himesh Chavda, commercial solicitor at Henmans Freeth LLP, looks at some of the key points raised by the Supreme Court in the recent case Public Relations Consultants Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and others (2013) (widely known as 'the Meltwater case'), which discusses whether viewing web pages on the Internet could amount to copyright infringement
Many websites offer news or information digest services where they send out email extracts and full stories linked to third party websites. Readers benefit by receiving content in which they are interested directly to their inbox, and publishers can reach audiences who may not otherwise have seen their material. But what if an information digest site offers readers material without the publisher’s consent? Is the site breaking the law? Is the reader breaking the law?
The Meltwater case had raised concerns that Internet users might be infringing copyright when browsing web pages, as the High Court and Court of Appeal suggested that users would need a licence to view copyrighted material on a website. The Supreme Court reconsidered the decision, given that millions of non- commercial users of the Internet would otherwise unintentionally incur civil liability, which they described as an “unacceptable” result. It decided that making temporary copies of a web page on the reader’s screen (including by caching) will not amount to copyright infringement.
This article provides some background on copyright law, a brief summary of the reasons set out by the Supreme Court as to why browsing an article online would not be a breach of copyright and some action points for owners of online copyright material.
Copyright law and the temporary copies exception
UK copyright law is primarily set out in the Copyright, Designs and Patents Act 1988 (CDPA), which states that original literary, dramatic, musical or artistic works (amongst others things) are protected automatically upon creation as copyright material. Copyright gives the author rights to control the use or commercial exploitation of the works. Material distributed by email or made available over the Internet is protected under copyright law in the same way as hard copy materials.
The CDPA also provides that certain activities will not infringe the copyright of the owner. These permitted activities include (amongst others) use of copyright material for making of a temporary copy which is (i) transient or incidental, which is an integral and essential part of a technological
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process and (ii) the sole purpose of which is to enable transmission of the work in a network or a lawful use of the work and (iii) which has no independent economic significance (temporary copies exception).
The Meltwater case
The Meltwater group provides an online media monitoring service (the newsletter) whereby it monitors a wide range of news websites, and emails the newsletter to its customers or gives them access to it on their website. The newsletter contains (i) a hyperlink to each relevant report, which takes the customer through to the article on the publisher’s own website, (ii) the opening words after the news headline and (iii) an extract of the report.
It was common ground that Meltwater (represented by PRCA) needed a licence, which it later obtained from the NLA (a body which manages the copyrights of various newspapers), in order to provide its services without infringing copyright. The question on appeal was whether Meltwater’s customers needed a licence to receive the newsletter if the reports were made available only on Meltwater’s website.
The Supreme Court considered the temporary copies exception and, in summary, gave the view that: (i) copies generated on screen and in an Internet cache when browsing the Internet are both temporary and transient and an essential part of browsing technology; (ii) use of the material was lawful whether or not the copyright owner had authorised it, if it was consistent with the applicable legislation governing the reproduction rights; and (iii) that on-screen and cached copies have no “independent” economic value (unless the material is downloaded or printed). It should be pointed out the Court’s decision has no impact on a copyright owner’s ability to take action against those who unlawfully upload copyright material to the Internet.
Although the Supreme Court’s decision is clear, it has referred the matter to the Court of Justice of the EU (CJEU) so that a consistent approach is taken across the EU. Thus, the matter has yet to be fully resolved until the CJEU has issued its judgment, which is widely believed by
commentators to likely follow the decision of the Supreme Court.
Comment
The decisions of the High Court and Court of Appeal (as mentioned above) seemed to be rather strange given that they would have had a hugely adverse impact for Internet users generally. The case is a good example of what might seem at first to be an obvious conclusion by the Supreme Court, but in fact has required considerable deliberation as to the underlying legal issues.
The case illustrates that those of you who publish articles and blogs or provide online information digest or marketing services should give particular attention to your contractual documentation to ensure that it expressly sets out what permissions are granted to readers in respect of the materials accessible on your website and confirms what licences you have to publish third-party materials.
It is also common to find subscription-only articles that are easily accessible by typing in the headline into a search engine. If you wish to prevent non- subscribers from viewing this material, you will need to ensure your website restricts access to the articles regardless of the source used to find them, as you will not otherwise have recourse against someone simply viewing those materials online.
If you have any queries related to copyright or other IP matters, or would like to discuss the issues mentioned in this article, contact Himesh Chavda.
Details:
Himesh Chavda 01865-781208
himesh.chavda@
henmansfreeth.co.uk
THE BUSINESS MAGAZINE – THAMES VALLEY – SEPTEMBER 2013
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