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The case: Public Relations Consultants Association Ltd (Meltwater) v The Newspaper Licensing Agency

3 June 2012

Background

This case, relating to the provision of news monitoring services online and by email, was billed as a titanic struggle between old and new media. Detractors said that if the Newspaper Licensing Agency Ltd (NLA) succeeded, the ruling would break the internet. The NLA, said that this case was just about whether or not subscribers to press clippings services required a licence, and much internet use would be covered by the private study and non-commercial research defences.

The NLA succeeded in the High Court and at the Court of Appeal, and in both courts, the case was widely known as Meltwater, who were then the first and second defendants. The third defendant, Public Relations Consultants Association, whose members are provided with the Meltwater service, took the matter on to the Supreme Court.

The High Court also found that Meltwater itself needed a copyright licence and that headlines and text extracts could be copyright works or substantial parts of copyright works. These findings were confirmed by the Court of Appeal and were not appealed further to the Supreme Court.

Dispute before the Supreme Court

The point appealed to the Supreme Court was whether or not viewing web pages fell within the temporary copying exception. The High Court and the Court of Appeal had held that unlicensed web browsing could not fall within this exception.

Article 2 of the Information Society Directive 2001/29/EC states that

Member States shall 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… for authors, of their works.

This was already part of UK law. The Information Society Directive was intended to modernise and harmonise some elements of copyright law and to allow, amongst other things, internet browsing. Recital 33 specifically stated that to the extent that certain conditions were met, the temporary copies exception should allow browsing and caching to take place.

The temporary copying exception is set out in Article 5 (1):

Temporary acts of reproduction referred to in Article 2, 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 provided for in Article 2.

Article 5(1) has been considered three times by the CJEU, in Infopaq I (C-5/08), Infopaq II (C-302/10), and in Premier League (C-429/08).

Infopaq I said that article 5(1) could be broken down into five conditions:

(1) the act is temporary;

(2) it is transient or incidental;

(3) it is an integral and essential part of a technological process;

(4) the sole purpose of that process is 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

(5) the act has no independent economic significance.

Applying the case to the facts of Meltwater, Lord Sumption said that "part of the purpose of article 5.1 is to authorise the making of copies to enable the end-user to view copyright material on the internet, so the various conditions laid down by that article must be construed so far as possible in a manner consistent with that purpose. This is consistent with the overriding principle that, as Lord Sumption put it "a person who reads a pirated copy of a protected book or views a forgery of a protected painting commits no infringement although the person who sold him the book or forged the painting may do".

The Supreme Court was able to deal fairly swiftly with conditions (3) to (5), relying on the decisions in Premier League and Infopaq II (which importantly had not been decided at the time of the first instance and Court of Appeal decisions in Meltwater).

Lord Sumption said that the third condition was manifestly fulfilled as creating copies in the cache and on screen is an integral and essential part of web browsing. This may be overstating the case; most browsers use cache by default, but on a technical level it is not necessary and in fact most browsers now come with a privacy mode which does not store information in cache.

The fourth condition was also fulfilled. Premier League said that merely receiving a broadcast was lawful for the purposes of article 5(1)(b), even though such reception was not authorised by the broadcaster. In light of this and Infopaq II, the Supreme Court held that the fourth condition is fulfilled if the use is lawful apart from any lack of authorisation by the copyright owner - meaning that this condition was fulfilled in Meltwater.

Premier League also said that the fifth condition must mean that the use made by the alleged infringer must have no economic value other than that which was inherent in its mere reception and viewing. Otherwise, "all television viewers using modern sets which, in order to work, need those acts of reproduction to be carried out would be prevented from receiving broadcasts … in the absence of an authorisation from copyright holders". Similarly, the Supreme Court found in this case that the sole economic value came from reading the information on screen. There was no independent economic significance to Meltwaters customers.

That left the Supreme Court to assess the first and second conditions.

In relation to the first condition, Infopaq I said that storage and deletion of the material should be automatic in that it should not depend on discretionary human intervention, and the copy should only be kept for as long as necessary to complete the technological processes in question. The NLA said that in Meltwater, the deletion of material was not automatic - cache settings could be adjusted so that information was retained indefinitely, and a computer monitor could be left on indefinitely with the web page on screen. Lord Sumption dismissed these arguments. Firstly, he said that processes should be considered in accordance with their normal operation. Secondly, extending the operation of an automatic process was not the same as storing it until a discretionary decision is taken to delete it. Thirdly, and most tellingly,

"the Respondents examples, as examples go, prove too much. If the mere fact that it is in principle possible to close down a computer, alter the browser settings to enlarge the internet cache or leave an image on screen indefinitely were enough to prevent article 5.1 from applying, then it would never apply to internet browsing. This would frustrate the purpose of the legislation".

So the Directive allows caching and browsing, apart from anything else, because despite its awkward phrasing, it was meant to allow caching and browsing (in the right circumstances): Recital 33 of the Directive says as much.

As the copying is temporary, it is also transient. The Supreme Court could not find a difference between the two: "it is not suggested that "transient" means anything different from "temporary", and in my view they are the same" (per Lord Sumption). In addition, the copying is incidental to the lawful use - the viewing of the page.

The NLA argued that if viewing a web-page does not infringe copyright, the copyright owner would be "exposed to large-scale piracy", and the NLAs solicitors have commented that the Supreme Courts decision "could be viewed by many as something of an online pirates charter".

The Supreme Courts answer to this was very sensible. They noted that merely reading a physical article has never been copyright infringement under English law, and that if they did not overturn the Court of Appeals judgment,

"then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes."

Referral to CJEU

Having provided the answers, Lord Sumption said that the import of the decision warranted a reference to the CJEU on the question as to whether the first, second and third conditions were fulfilled by the facts of Meltwater. He had in mind the recent recommendations given by the CJEU in relation to references to, in that even where a national court considers that there is sufficient guidance within the existing case law of the CJEU, a reference may be useful where the uniform application of CJEU case law is at play. The fact that the issue is transnational and that the interplay between copyright law and basic use of the internet has an impact on many millions of people across the EU warranted a reference. This means that the Supreme Courts decision is still not the final decision in this matter.

These authors consider it likely that the CJEU will come to the same conclusion as the Supreme Court, because any other decision would run contrary to the spirit (although perhaps not the letter) of the Information Society Directive, and would make normal web browsing an act of copyright infringement.

Copyright law still does not work with the internet

The Supreme Courts decision is a very sensible decision, but it remains the case that many normal internet activities amount to copyright infringement.

One of the conclusions of the Court of Appeal which was not appealed to the Supreme Court was that newspaper headlines are capable of being original literary works. This means that copying a headline can be copyright infringement. It is common practice for newspapers to include headlines in URLs. This means that sending a URL to an article can involve copying a copyright work, and so can be copyright infringement. This was not appealed to the Supreme Court and so the Court of Appeals position should still be taken to be binding.

The temporary copies exception only protects against browsing where no non-temporary copies are made. So downloading a page or printing it out could infringe copyright. Similarly, as the Supreme Court acknowledges, emails are not temporary copies and so the mere fact of receiving an email can amount to copyright infringement (and it is not a defence that infringement is innocent). This leads to the rather odd position (which has been highlighted by NLAs lawyers) that whilst content might be browsed on a website without the need for a licence, if that same content were to be emailed to an end user (as per the Meltwater service), the end user runs the risk of copyright infringement and so requires a licence.

Recital 5 of the Information Society Directive reads:

"Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation."

The Meltwater case has highlighted the gap between the technology and the law. It demonstrates that the Directive was not drafted clearly enough or widely enough to allow for normal use of the internet and email. Many technological changes have taken place since 2001, and the manner in which information is shared and accessed is constantly evolving. Perhaps it is time to have wider fair dealing exceptions in European copyright law that allow for limited use of copyright works, that can transcend the technological changes.

This article was co-authored by Mark Daniels and Giles Parsons and was first published in Intellectual Property Magazine (June 2013)

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