Five days ago, the UK Supreme Court pronouced its ruling on Public Relations Consultants Association Limited v. The Newspaper Licensing Agency Limited, a case that dealt with whether copyright infringement proceedings could be brought against internet users for merely viewing copyrighted content. The five judge bench presided by Lord Neuberger and consisting of Lord Kerr, Lord Clarke, Lord Sumption and Lord Carnwath unanimously held that copyright infringement proceedings could not be brought against such internet users. The issue had been first decided by Mrs. Justice Proudman of the England and Wales High Court (Chancery Division) in favour of the Newspaper Licensing Agency. This decision was later upheld by the Court of Appeals. However, the Supreme Court overturned the decision of the Court of Appeals on 17 April, 2013.
The issue was whether the mere viewing of copyrighted content on a website would amount to copyright infringement if the end users of the internet did not have a license from the owners of the copyright.
The applicable legal provision in this case was Article 5.1 of the Directive 2001/29/EC. Article 5.1 provides that " Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] anintegral 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 provided for in Article 2."
However, the Directive provides that the exemption will be applicable only in special cases where there is no normal exploitation or the work and where the legitimate interests of the rightsholder is not adversely affected.
The first question considered by the Supreme Court was whether Article 5.1 applied to temporary copies that were generated by an end-user of the internet. The Court answered in the affirmative, relying inter alia on the Premier League case, which had held that Article 5.1 would apply when copyrighted material was viewed on a television screen. The Supeme Court noted that there was no rational difference between viewing copyrighted material on a television screen and on a computer screen. Hence, the Supreme Court held that Article 5.1 would apply.
After establishing that Article 5.1 applies to the instant case, the Court looked at whether the five conditions of Article 5.1 were satisfied. These conditions as laid down in Infopaq I were the temporary nature of the act,whether the act was transient or incidental, whether it was an integral and essential part of a technological process, whether ths the sole purpose of that process was to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter; and whether the act has no independent economic significance. The Court held that there was no challenge based on the third, fourth and fifth conditions of Article 5.1. The third condition was satisfied because an internet user reading material on a website was an essential part of a technological process. With respect to the fourth condition the Court noted that lawful, as has been clarified in earlier cases such as Premier League and Infopaq II, meant lawful apart from the authorization of the copyright owner. The Supreme Court noted that no independent economic value was being derived by the internet users merely by reading material on Meltwater's website.
On the first two conditions of Article 5.1 of temporariness and transcience, the Supreme Court firstly noted that these two conditions were more or less the same. The requirements for satisfying these conditions are that storage and deletion of the copyrighted material should not be dependent on the discretion of the user and that it should only be available for the time period that is necessary for the completion of the technological process. The Court answered both questions in the affirmative. This was because the storage and deletion of the copyrighted material on the internet happens automatically as a result of time lapse along with the continuing use of the browser. Therefore, the storage and deletion of the copyrighted material is not dependent on the discretion of the end users of the website. Moreover, as these materials are only read on the website and not stored or downloaded, the net effect is that they are available only for the time period of the ordinary internet use. Thus, the Supreme Court held that the conditions of temporariness and transcience were satisfied.
Therefore, the Court held that as all the conditions applied to the instant case, the exemption under Article 5.1 was applicable. Moreover, the Supreme Court also opined that the consequences of holding otherwise would be that millions of internet users would find themselves in a precarious position of being threatened by copyright proceedings for reading content that they came by accidentally. This, the Court rightly noted, was an unreasonable consequence. Hence, the Court held that no copyright infringement was committed by end users who merely read copyrighted content without downloading or making copies of it. The UK Supreme Court has referred the case to the European Court of Justice and their decision on this matter is now awaited.
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