Browsing Without Licence – Logic Prevails but Limitations Remain

Fortunately, for all of us and, in particular, online service providers logic has prevailed. The Court of Justice of the EU (CJEU) has rejected the idea that, without express copyright owner consent, copyright is infringed every time an internet user browses the internet and opens and peruses a website directly from the main server or from a cache.

This means business as normal for content aggregators, search services, broadcasters and streamers.

The alternative was unthinkable and unworkable. Article 5(1) of the Information Society Directive exempts from the copyright owner’s reproduction right both temporary  acts of reproduction which are “transient or incidental” to enable transmission in a network between third parties by an intermediary and lawful use of a work which has no independent economic significance”

The Newspaper Licensing Agency had argued on behalf of major UK newspaper publishers that users of Meltwater, a company that provides an online media monitoring service to compile an index of newspaper websites had overstepped the mark and that customers of Meltwater needed a direct licence from the copyright owners as, amongst other things, the copy  of the article in the user’s computer’s cache was an infringing copy.

The CJEU backed the UK Supreme Court’s view that temporary copies made in an end user’s cache and on screen when viewing the content of a web-page rather than downloading or printing it were exempted as “temporary copies”.

However, whilst this decision confirms that browsing the internet requires no licence from the copyright owner, it could have gone a lot further. As things now stand, the exception in Article 5(1) does not extend to downloading or printing content, forwarding content to third parties or obtaining financial gain by independently exploiting content as opposed simply to reading  it.

Simon Halberstam