The UK Supreme Court has handed down its judgment in the
case of Public Relations Consultants Association Limited (PRCA) and the
Newspaper Licensing Agency (NLA) & Others. Whilst expressing the view
that merely viewing copyright material online (as opposed to downloading or
printing that material) does not amount to copyright infringement, it has
nevertheless made a reference to the Court of Justice of the European Union for
clarification of its understanding of European law, given that the judgment
will have important implications for many millions of people across the
Meltwater operates an online monitoring and search service, enabling its
customers to have easy access to relevant news stories. Currently, the service
is made available to its end users by email. The Supreme Court was asked to
consider whether, if the same service was made available to view online, and
merely viewed by end users, there would still be an infringement of copyright.
PRCA (a trade body of which Meltwater is a member) argued that end users could
rely upon the defence available under section 28A of the Copyright Designs
& Patents Act, which was introduced to give effect to Article 5(1) of
Directive 2001/29/EC of 22 May 2011 on the harmonisation of certain aspects of
copyright and related rights in the information society. Section 28A provides
that "copyright ... is not infringed by the making of a temporary copy
which is transient or incidental, which is an integral part of a technological
process and the sole purpose of which is to enable:
and which has no independent significance".
Where a web page is viewed by an end-user on their computer, without being copied
or downloaded, the technical process involved will require temporary copies to
be made on screen and in the internet "cache" on the hard disk of the
computer. In the ordinary course, these cached copies will be over-written.
The NLA sought to argue that this cached material was not "temporary"
or "transient" because it is possible for the user to make a
discretionary decision to close down the computer, thereby leaving the material
in the cache indefinitely until the browser was used again. Lord Sumption was
not persuaded by this argument.
The CJEU reference question
Before making any final order on the appeal, the Supreme Court has asked the
Court of Justice "whether the requirement of article 5.1 of the Directive
that acts of reproduction should be
A final decision on this issue will therefore not be determined for some time.
As Lord Sumption recognises, the appeal raises an important question about the
application of copyright law to the technical processes involved in viewing
copyright material on the internet and the case will be watched with interest.
This information is intended as
a general overview and discussion of the subjects dealt with. The information
provided here was accurate as of the day it was posted; however, the law may
have changed since that date. This information is not intended to be, and
should not be used as, a substitute for taking legal advice in any specific
situation. DLA Piper is not responsible for any actions taken or not taken on
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