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Tuesday, 2 July 2013

Meltwater questions for CJEU: time to think

The IPKat and some of his friends from Wales
The IPKat's friends at the Welsh-based UK Intellectual Property Office (IPO) have emailed him with the exciting news that the IPO is now soliciting comments from interested parties on the questions that the UK's Supreme Court has referred to the Court of Justice of the European Union (CJEU) in Case C-360/13 Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited and others -- better known as the Meltwater case. In short, explains the IPO:
The Supreme Court has referred questions ... concerning whether end users, who view web-pages on their computers without downloading or printing them, are committing infringements of copyright.

This appeal raises an important question about the application of copyright law to the technical processes involved in viewing copyright material on the internet.

Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and in the internet "cache" on the hard disk of the computer. The end-user's object is to view the material. He does not make a copy unless he downloads or prints the image. The copies temporarily retained on the screen or in the cache are merely an incidental consequence of using a computer to view the material.

The referred question as in circumstances where:
(i) an end-user views a web - page without downloading, printing or otherwise setting out to make a copy of it;

(ii) copies of that web - page are automatically made on screen and in the internet "cache" on the end-user's hard disk;

(iii) the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;

(iv) the screen copy remains on screen until the end - user moves away from the relevant web - page, when it is automatically deleted by the normal operation of the computer;

(v) the cached copy remains in the cache until it is overwritten by other material as the end - user views further web - pages, when it is automatically deleted by the normal operation of the computer; and

(vi) the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;
Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC [the InfoSoc Directive]?
This case and the questions referred to the court can be viewed on our website at:

If you would like to comment on this case please email At this point there is no deadline for comments since the IPO has not received official notification of this case from the Court of Justice.

Says the IPKat, since there's no immediate deadline for the submission of opinions (which won't of course influence the CJEU but might colour the UK government's decision to make representations to that court), it would be good if interested readers focused on the legal issues rather than just making sweeping and rhetorical assertions.  Once the CJEU rules, we can then go back to the drawing board and see whether the law we actually have is in fact the law we want.  Merpel disagrees: it's not possible to separate law from policy on a matter as sensitive as this, she mewses.

Some further reading

  • Eleonora's katpost of 17 April on the Supreme Court's decision to refer questions to the CJEU here
  • Katpost reporting on the Baker & McKenziie debate on whether this case represents the end of browsing as we know it here
  • Lionel Bently's assault on the Court of Appeal decision in this case, hosted on this weblog here
  • Simon Clark's explanation of why the Court of Appeal decision won't break the internet, hosted on the 1709 Blog here -- and the response of James McKenzie (Cutbot) on the same blog here 


Anonymous said...

It was stated: "focused on the legal issues rather than just making sweeping and rhetorical assertions," but the sweeping and rhetorical assertions are muchmore potent.

For example, a copy is a copy - regardless of what the copy is used for (there is no such thing as being 'merely incidental' to ANY use, if the plain fact of what is being controlled is the mere fact of making a copy.

Using a computer necessarily makes copies. This should be admitted to and addressed forthright because there is no RIGHT to using a computer in the first place.

Anonymous said...

Here are two sweeping statements, from, er, Lord Sumption: “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".

“if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes".

Andy J said...

I'm not entirely sure of the actual points being made by the two anonymous (or maybe the same) commenters above.
The point of the referral, as it was in the case before the Supreme Court, is whether the copy being made is one which permitted - and therefore not an infringing act - under Article 5. At no stage has anyone suggested that the copies aren't 'copies' just because they occur within a computer.
As for the proposition that Lord Sumption has made sweeping statements, I'm not clear how or if this is a problem. His first statement is undoubtedly true: nowhere in the law is the viewing of an infringing work an offence or an infringement per se. On that basis I would say Lord Sumption's first quoted remark is a truism.
The first sentence of his second statement merely follows logically from the assertion by the NLA that Art 5(1) does not cover copies made in the cache or on the screen. The second sentence reflects the Court's view that such an outcome would be problematic in public policy terms, and therefore probably not what the EU had intended the Directive to mean.

Rietz Worldwide said...

thanks for sharing this article.

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