17 April 2013Copyright

Meltwater ruling a win for Internet users but case heads to CJEU

Internet users do not require permission to browse and view copyrighted material on web pages, the UK Supreme Court confirmed on Wednesday.

But the court has asked the Court of Justice of the EU (CJEU) to clarify questions in the case Public Relations Consultants Association (PRCA) v The Newspaper Licensing Agency (NLA).

The PRCA monitors news coverage by using online search services including those provided by Meltwater, which indexes news articles and provides search reports via email and on its website. Meltwater charges its customers a licence fee.

Meltwater pays a licence fee to the NLA for linking to news articles. The UK Court of Appeal has already settled part of the parties’ copyright dispute, finding that headlines and articles used by Meltwater are protected by copyright.

Today, the Supreme Court was ruling on whether Meltwater’s customers should pay a licence to view a web page or a cached version of it – seen as temporary copies. The Court of Appeal (and the England & Wales High Court) has previously said a licence is required.

Lord Sumption, who was writing on behalf of the court, found conclusively that end users merely reading copyrighted articles are exempted by article 5.1 of the 2001 Copyright in the Information Society Directive.

“It has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form... All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the Internet in the same way as its viewing in physical form,” he said.

Sumption said it would be “unacceptable” to charge people to view copyrighted material and that it could turn millions of Internet users into infringers.

The court noted that the previous decisions in the UK came before two important CJEU decisions – Premier League and Infopaq II – which had since broadened the concept of ‘lawful use’ of copyrighted works.

Despite finding in the PRCA and Meltwater’s favour, Sumption has asked the CJEU to review whether his findings satisfy the requirements of article 5.1, which specifically exempts acts of reproduction that are “temporary, transient or incidental, and an integral and essential part of the technological process”.

In a joint statement, the PRCA and Meltwater welcomed today’s ruling, with PRCA director general Francis Ingham noting: “The Supreme Court understood that this [dispute] does not just affect the PR world, but the fundamental rights of all EU citizens to browse the Internet.”

David Pugh, managing director of the NLA, confirmed that the decision had no immediate impact on its licences, as headlines and text extracts are already protected by copyright, and that the company awaits the CJEU’s final decision.

“The Supreme Court appears to have taken a pragmatic approach to the problem, in keeping with CJEU case law, “ said Mark Owen, partner at Taylor Wessing LLP. “Most Internet users would be surprised to learn that they were infringing copyright by looking at headlines and short clippings, or indeed any webpage or email, on their computer screens.”

Joel Smith, partner at Herbert Smith Freehills LLP, said today’s decision was “based on practicality” and that it affects a wide range of companies.

“If you say that looking at copyrighted material means infringing (without a licence), then it would have a profound impact on the Internet. This ruling is important for information providers – supplying anything from theatre listings to football results.”

“This is a good ruling for Internet users and information providers. Publishers will see this as neutral decision, as they have not particularly tried to control it [viewing copyrighted material],” Smith said.

Rebecca Swindells, partner at Field Fisher Waterhouse LLP, said: “A CJEU reference is certainly welcome to provide some clarity on the issue across Europe, although the consequent delays before we get a final result are unfortunate.”

The CJEU is expected to rule on the case in the next two years, at which point it will come back to the English courts.

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