You can’t break copyright by looking at something online, Europe’s top court rules

Internet users who look at copyrighted material online aren’t breaking copyright by doing so, the Court of Justice of the European Union (CJEU) declared on Thursday.

Before you splutter “Well duh” at your screen, note that this judgement finally ends a very long-running and somewhat stupid legal debate over rights relating to online newspaper clippings. This is a useful ruling that will apply across the EU, much to the chagrin of certain publishers.

Meltwater redux

All this relates to the British Meltwater case. Meltwater is a Norway-founded media monitoring service that sent out daily digests including the headlines and “ledes” – the first bit of the article — of the newspaper stories, together with links to the full online articles. It did not pay for these snippets. The company found itself sued in both the U.S. and the U.K., with the suits covering the same basic activity but diverging significantly in what happened next.

In the U.S., the suit was filed by the Associated Press, which effectively saw Meltwater as a freeloading rival to its own newswire services. In 2013, a federal court decided in AP’s favor, kicking out Meltwater’s claim that what it was doing counted as fair use. Meltwater initially said it would appeal, but then decided to work with the AP on new media monitoring products instead.

The U.K. case was quite different. There, it was the Newspaper Licensing Agency (NLA), a collection society for the papers, that did the suing, and the Public Relations Consultants Association (PRCA) on the defending side. Meltwater itself agreed to pay a licence fee to the NLA, but the NLA maintained that Meltwater’s clients, in this case the PRs, also had to pay.

Here the case split into two separate issues. The less controversial issue was whether Meltwater’s clients should pay a license fee for the emails they received; it was quickly established that these non-temporary copies of the newspapers’ content were not exempt from copyright. However, that left the question of viewing copyrighted content online – what would the law say if Meltwater only made its monitoring reports available on a website?

Both the High Court and the Court of Appeal decided in the NLA’s favor in 2010 and 2011 respectively, ruling that viewing online content can involve copyright infringement, but the Supreme Court overturned those rulings in 2013. Apart from details about existing case law, a major reason for the Supreme Court’s decision was Article 5.1 of the EU Copyright Directive, which gives a copyright exemption to:

Temporary acts of reproduction … which are transient or incidental, which are an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) lawful use

The Supreme Court decided in the PRCA’s favor, but it also referred the matter over to the CJEU “so that the critical point may be resolved in a manner which will apply uniformly across the European Union.”

Which brings us to today’s ruling.

Caching is OK, really

The NLA’s argument went roughly like this: when you look at online content, you’re making 2 copies, one on the screen and one in your browser’s cache. The agency claimed that this required the authorization of the copyright holders.

The CJEU looked at what Meltwater’s potential website-only clients were doing and matched it up against the list of requirements for fulfilling Article 5.1. Success!

The court ruled:

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.

In other words, the U.K. Supreme Court was right and the same principles must now apply across the European Union. Bad news for German publishers, for example, who in 2013 almost got the government there to force employers to pay fees for letting their employees read the news at work — the business lobby beat the publishing lobby on that one, and the subsequent “Google(s goog) tax” ancillary copyright law only said online aggregators, not their readers, needed to pay up.


PRCA Director General Francis Ingham said in a statement on Thursday that the association was “utterly delighted”:

The Court of Justice, like the Supreme Court before them, understands that the NLA’s attempts to charge for reading online content do not just affect the PR world, but the fundamental rights of all EU citizens to browse the Internet. This is a huge step in the right direction for the courts as they seek ways to deal with the thorny issues of Internet use and copyright law. We are pleased that we have stood up for the PR industry – along with Meltwater – when everyone else rolled over.

Meltwater CEO Jorn Lyseggen also chipped in, saying the ruling would allow Europeans to “use the Internet without fear of unintentional infringement.”

However, the NLA pointed out in its own statement that Meltwater’s clients still had to pay license fees to receive the service’s email digests:

The result of the case has no implications for the licences NLA media access issues for the present web-monitoring services operated by Meltwater and other media monitoring agencies; although it may in time lead service providers to create new services which would operate under a different licensing regime. The net economic effect of this judgment for newspaper and magazine publishers should be neutral: end user clients who pay for their current monitoring service still require a licence for the content they receive.