From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 5 June 2014

BREAKING NEWS: CJEU says that you can keep browsing the internet without (copyright owners') permission

The Court of Justice of the European Union (CJEU) has just issued the decision everybody was waiting for, this being the decision in Case C-360/13 Public Relations Consultants Association v Newspaper Licensing Agency and Others.

Similarly to what happened - quite surprisingly but increasingly frequently [see the 2013 Annual Report] - in Case C-466/12 Svensson [on which see herehereherehere and here], it did so without the Opinion of one of its Advocates General [the designated one in this case was Maciej Szpunar]. The Court uses this simplified procedure when, as the last paragraph of Article 20 of its Statute states, the case at issue "raises no new point of law" [= we are dealing with straightforward (non-)issues, but was this the case in Svensson and Meltwater?].

As IPKat readers - especially those based in the UK - will promptly recall, it was the UK Supreme Court that referred this case to the CJEU. Lord Sumption neatly summarised the issues at stake here in the Court's judgment on 17 April 2013 
[press release here]

"The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. 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 also in the internet “cache” on the hard disk. The screen copy is self-evidently an essential part of the technology involved, without which the web-page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web-page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage [...] The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner."

A CJEU reference to know whether
browsing the internet is lawful?
Lord Sumption rejected the idea that the [only] mandatory exception/limitation in Article 5(1) of the InfoSoc Directive [and its corresponding provision in Section 28A of the UK Copyright, Designs and Patents Act 1988] would not apply to temporary copies generated by an end-user of the internet, also because Recital 33 to the Directive makes clear that such exception/limitation is intended to “include acts which enable browsing as well as acts of catching to take place.” 

Nonetheless, given the appeal’s transnational dimension and potential implications for internet users across the EU, the UK Supreme Court decided to refer the following questions to the CJEU:

In circumstances where:
  • an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;
  • copies of that web-page are automatically made on screen and in the internet “cache” on the end-user’s hard disk;
  • the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;
  • 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;
  • 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 
  • 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 [yes, that is the InfoSoc Directive]?

"Your computer time is up!" -
For Oliver, the only one
whose permission is needed
is his mum
In its neat 64-paragraph ruling the Court, started by noting that, by its question, the referring court asked in essence whether Article 5(1) of the InfoSoc Directive must be interpreted as meaning that the on-screen copies and cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and, if so, whether those copies may be made without the authorisation of the copyright holders.

The Court started by recalling that it is settled case law [see, as recent example yet not cited by the CJEU, the decision in Case C-435/12 ACI Adamhere] that exceptions and limitations - including Article 5(1) and its conditions - must be interpreted strictly, in that they are a derogation from the general rule established by the InfoSoc Directive that the copyright holder must authorise any reproduction of his/her protected work.

In any case, "it is apparent from that same case-law [in particular paragraph 164 of Joined Case C-403/08 and C-428/08 FAPL] that the exemption provided for in that provision must allow and ensure the development and operation of new technologies, and safeguard a fair balance between the rights and interests of rights holders and of users of protected works who wish to avail themselves of those technologies".

This said, the CJEU determined whether the conditions in Article 5(1) were satisfied. This provision states that an act of reproduction is exempted from the reproduction right provided for in Article 2 on condition that:
  1. it is temporary;
  2. it is transient or incidental;
  3. it is an integral and essential part of a technological process;
  4. its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
  5. it has no independent economic significance.
The referring court had already determined that the on-screen copies and cached copies satisfy the fourth and fifth conditions set out in Article 5(1), so the CJEU had just to consider first three conditions.

Is the reproduction temporary?

The CJEU noted that on-screen copies are deleted when the internet user moves away from the website viewed, and that the cached copies are normally automatically replaced by other content after a certain time, which depends on the capacity of the cache and on the extent and frequency of internet usage by the internet user concerned. It follows that those copies are temporary in nature.

Is the reproduction an integral and essential part of a technological process?

The Court then deemed it appropriate to consider the third condition. This requires that two criteria are cumulatively fulfilled: (1) that the acts of reproduction are carried out entirely in the context of the implementation of a technological process, and (2) that the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts [see Infopaq paragraph 61, and Infopaq II, paragraph 30].

According to the Court, both conditions are satisfied: the on-screen copies and the cached copies must be regarded as being an integral and essential part of the technological process at issue in the main proceedings.

Unlike on-screen copies,
there is nothing
transient in Claire's snoozing time
Is the reproduction transient or incidental?

The Court then examined the second condition in Article 5(1), and noted that it comprises alternative criteria: the act of reproduction must be either transient or incidental.

As regards the first of the two criteria, an act will be held to be ‘transient’, in the light of the technological process used, if its duration is limited to what is necessary for that process to work properly, it being understood that that process must be automated inasmuch as it deletes such an act automatically, without human intervention, once its function of enabling the completion of such a process has come to an end [see Infopaq, paragraph 64].

In any case, the requirement of automatic deletion does not preclude such a deletion from being preceded by human intervention directed at terminating the use of the technological process. 

An act of reproduction does not lose its transient nature merely because the deletion by the system of the copy generated is preceded by the intervention of the end-user designed to terminate the technological process concerned.

As regards the other criterion, an act of reproduction can be regarded as ‘incidental’ if it neither exists independently of, nor has a purpose independent of, the technological process of which it forms part. 

In the case in the main proceedings, as regards, first, the on-screen copies, it should be recalled that these are automatically deleted by the computer at the moment when the internet user moves away from the website concerned and, therefore, at the moment when he terminates the technological process used for viewing that site.

In this respect, it is irrelevant that the on-screen copy remains in existence for as long as the internet user keeps his/her browser open and stays on the website concerned because, during that period, the technological process used for viewing that site remains active.

The Court held that the period during which the on-screen copies remain in existence is limited to what is necessary for the proper functioning of the technological process used for viewing the website concerned. Consequently, those copies must be regarded as ‘transient’.

As regards cached copies, it is true that, unlike the on-screen copies, they are not deleted at the time when the internet user terminates the technological process used for viewing the website concerned. However, it is not necessary that such copies be categorised as ‘transient’ once it has been established that they are incidental in nature in the light of the technological process used.

The Court concluded that that the on-screen copies and cached copies satisfy the second condition laid down in Article 5(1) the InfoSoc Directive.

Three-step test?
Not a problem
Do not forget the three-step test!

The CJEU held that the copies at issue in the main proceedings satisfy the first three conditions set out in Article 5(1) of InfoSoc Directive. However, in order for it to be possible to rely on the exception laid down in that provision, those copies must also satisfy the conditions laid down in Article 5(5). In other words, the carrying-out of a temporary act of reproduction is exempt from the reproduction right only (1) in certain special cases (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holders [yep, that's the three-step test].

The Court stated that, that, since the on-screen copies and the cached copies are created only for the purpose of viewing websites, they constitute, on that basis, a special case.

Although the copies make it possible, in principle, for internet users to access works displayed on websites without the authorisation of the copyright holders, the copies do not unreasonably prejudice the legitimate interests of those rights holders. Here the Court made a very interesting observation, by saying that: 

"[I]t must be pointed out that the works are made available to internet users by the publishers of the websites, those publishers being required, under Article 3(1) of Directive 2001/29, to obtain authorisation from the copyright holders concerned, since that making available constitutes a communication to the public within the meaning of that article. 
The legitimate interests of the copyright holders concerned are thus properly safeguarded.
In those circumstances, there is no justification for requiring internet users to obtain another authorisation allowing them to avail themselves of the same communication as that already authorised by the copyright holder in question."

Lastly, it must be held that the creation of the on-screen copies and the cached copies does not conflict with a normal exploitation of the works.

So: there are no problems of compatibility with the three-step test.

In conclusion

All this said, the Court ruled that: 

"Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."

Further analysis will follow shortly, so watch this space!

3 comments:

Japser said...

And what if I were to copy a file from the cache to my desktop for more or less permanent storage? Would that constitute copyright infringement?
And if so, what action would constitute the infringement? The storage in the cache or the storage on the desktop?

Or what if I provided a batch executable that marks every 50th downloaded file as read-only (for n00bs: this means you cannot delete the file). This would deprive the file in the browser cache from its transient character. What would constitute the infringment? The marking as read-only? But that is being done automatically, by a running script. Would that make my computer liable for copyright infringement? Or the person who caused the script to run?

And I can provide some more examples the Court may not have thought of. The theoretical approach in disecting of the Court of a technical process that is over twenty years old (well, it is about twenty years ago since the first time I used MOSAIC to browse over the internet...) leaves me shaking my head in unbelief...

This may have to do with my technical background, but in my mind is a big DUH...

And I feel the opinion of the Kats does not diverge much from my thinking...

Anonymous said...

fair warning: I have not yet read the decision...

That notwithstanding, I think that anyone who makes a link to their material and makes it available on the internet has sua sponte granted a limited license to use the material so offered.

The scope of that license may be up to debate. Given that mechanisms abound to defeat the ability to then take the content and reproduce it for other uses (the ubiquitous Control-C, for example), it may be argued that those making their material available on the internet without such controls are granting an open license to copy.

Hey - no one is forcing anyone to post their stuff on the internet, right?

Anonymous said...

How does this ruling affect the case where the work is put on the internet without the author's permission? From my reading of the 4th condition, "its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use[...]", particularly the last "or" in my extract, then this ruling applies equally well if the website contains a copy made available without the author's permission, and even if the person consuming the content is well aware that the website does not have permission.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':