European Court Exempts Browsing From Copyright Law

Matt Broersma is a long standing tech freelance, who has worked for Ziff-Davis, ZDnet and other leading publications

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A European Court of Justice decision has affirmed that the temporary copies of content made by web browsers do not require a licence

The European Court of Justice last week concluded a five-year old legal case by reinforcing the legal protections allowing users to freely browse and view articles online, without the authorisation of the copyright holder.

The decision, handed down on Thursday, resolved a dispute between the Public Relations Consultants Association (PRCA), Britain’s industry body for the PR industry, and the Newspaper Licensing Authority (NLA), which sells licenses for newspaper content. It began in a copyright tribunal involving the NLA and Meltwater, a San Francisco media monitoring firm, and initially focused on the fees PR firms pay for reproduction of such content.

Court lawsuit gavel

Temporary copies

The NLA had argued that these fees should take into account the temporary copies made on readers’ computers when they browse the content – in other words, the content transmitted from the website onto a user’s computer in the act of browsing a site. The UK’s high court had agreed with the NLA on that point.

But the ECJ ruling overturned this decision, finding that such copies may not be covered by licensing fees, falling into an exception provided under European copyright law for temporary copies, an exception that also applies to copies made, for instance, by networking devices such as routers.

European law “must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions… and that they may therefore be made without the authorisation of the copyright holders“, the ECJ said in its ruling.

Legal protection

Meltwater and the PRCA’s legal team said the decision covered an important point of copyright law, assuring fundamental legal protections for Internet browsing.

“An adverse ruling in this case could have left the door open for publishers of potentially any form of content to claim copyright infringement whenever a link is viewed over the Internet,” Meltwater said in a prepared statement. “This would have threatened basic tenets of Internet freedom and could have had untold negative and unfair impact.”

The NLA said that such an assessment amounted to “PR spin”.

“The PR spin put on this case was that if our ruling was allowed to stand then users of the Internet would be criminalised for using a browser, but that’s never been what it’s about,” NLA managing director David Pugh told The Guardian.

He said that, in the organisation’s view, the exception for temporary copies was intended to be limited to copies made by networking equipment, and should not extend to web browsers. The ECJ’s decision broadening that exception to include most end-user activity on the Internet is threfore a misapplication of the law, Pugh said.

The original copyright tribunal case had ruled that the NLA must reduce the fees it charged to media monitors, and it was this decision that the NLA appealed to the UK high court.

The UK high court case, which took place in 2013, turned on two matters of legal principle: one was that headlines can be covered by copyright, even if they are only reproduced in the form of links that connect to the original article; this ruling still stands.

The ECJ overturned the second point, which was that Internet users needed a licence for the temporary copies in their web browsers.

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