The European Court of Justice has decided that internet browsing which involves viewing copyrighted content does not require the copyright holder’s permission and is not copyright infringement.
This is the latest in a recent flurry of court judgments which apply copyright and other intellectual property laws to digital content, providing much needed clarification of how traditional intellectual property rights are applied and must be adapted to reflect the internet age.
This decision confirms that internet users do not need the permission of a copyright holder to view online content. Although on a different topic, this decision marries well with the recent court decision confirming that it is acceptable to provide clickable weblinks to copyright works which are freely available online.
There is a theme emerging that material published on the internet - which is made freely available - can be browsed, referenced and linked to without the copyright owner’s consent. This would appear to limit copyright owners’ ability to prevent aggregation and viewing of their material online.
The Newspaper Licensing Agency (NLA), a body set up by the publishers of newspapers in the UK for the collective licensing of newspaper content, licensed its content to Meltwater News, an online news report monitoring service. NLA argued that the users of Meltwater’s service should also have a licence with the NLA.
As part of its argument, it said that viewing the material required the authorisation of the copyright holders because it led to copies being made on the user’s computer screen (on-screen copies) and in the internet “cache” of that computer’s hard disk (cached copies). It contended that those copies constituted “reproductions” that did not come within the copyright exemption allowing temporary acts of reproduction.
The court disagreed. It decided that the copies made when viewing content online were temporary. The on-screen copies were deleted when the internet user left the website; and the cached copies were usually deleted and replaced by other content over time. The other conditions for the exemption were also met:
The reproduction was an “integral and essential” part of a technological process because it automatically happened when accessing the website. It was irrelevant that the process was acted by the internet user.
The reproduction on-screen was “transient” because it was terminated when the user left the website. The cache copy was “incidental” as they were a by-product of viewing the web page and did not exist independently of the technological process used to view the content.
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