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When reality bites…ECJ rules on internet browsing infringement claim

» Posted on: 1 July 2014

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In a long-awaited decision, the European Court of Justice (ECJ) has confirmed that the copies of a website shown on a user's screen, and produced in the cache of their device when browsing the web page, are not infringing ‘reproductions’ of the website content for the purpose of copyright infringement.

The Newspaper Licensing Authority (NLA) had claimed that a media monitoring service known as Meltwater (which provided users with access to news articles) had not only infringed copyright in the newspaper publisher's material, but that end-users who accessed the material had also infringed it.

NLA's argument relating to end-users relied upon the fact that a copy of the website content was produced on-screen when viewing the website, and for a short time afterwards in the cache of the users' device. This was challenged by the Public Relations Consultants Association (PRCA) an association of PR professionals - on behalf of its members who had used the Meltwater facility. PRCA argued that the temporary on-screen and cached copies satisfied the conditions of a statutory exception provided for temporary reproductions which are part of an essential technological process.

On referral of questions from the Supreme Court, the ECJ considered three of the five primary conditions which must be satisfied for the exception to apply.

The ECJ noted that because the on-screen and cache copies were deleted automatically (either when leaving the website or when the short term cache memory expired) the copies made were ‘temporary’. It also referred to the fact that a website could not be viewed unless a copy was shown on-screen, and that whilst caches were not essential, without them the internet would be unable to cope with current volumes of data transmission.

Likewise, the Court explained that neither the on-screen nor cached copies had any independent significance aside from enabling people to efficiently access websites on the internet.

The ECJ further explained that the interests of copyright owners in the material on a website were already protected because the website publishers required their authority to publish such material. Requiring users of the website to obtain a further authorisation from the copyright owner was therefore unjustified.

Taking account of the above in the context of the relevant statutory conditions, the ECJ confirmed all three of the criteria in issue were satisfied and the exception from copyright infringement applied.

The ECJ's decision is a welcome result for all internet users, and continues a steady flow of recent case law from the senior courts as to the interpretation of copyright protection to various technological acts used daily. For example, earlier this year the ECJ confirmed that providing a hyperlink to another website did not in itself infringe copyright in that site. Note however that the words used in the hyperlink itself (depending on their length and originality) could potentially result in exposure to liability.

Taylors' Intellectual Property team, led by Tony Catterall, is recognised nationally and internationally for its expertise and experience in protecting and enforcing the rights of designers, particularly in the textiles, fashion and home furnishings sectors. It has won many notable and key cases in the High Court, Court of Appeal and Supreme Court against major corporates. Taylors is the only North West-based firm to have been appointed as a Legal Affiliate to the national organisation, Anti-Copying in Design (ACID).

If you have any queries, please do not hesitate to contact Tony Catterall, Head of our Intellectual Property team, on 0844 8000 263 or via email at tony.catterall@taylors.co.uk.

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