IP, Technology & Data

Last month, the Supreme Court handed down its latest judgement in the long-running Meltwater case.

This latest appeal considered whether merely viewing content on the internet could infringe copyright.

Whilst the Supreme Court has referred the matter to the European Court of Justice for clarification, the Supreme Court’s judgment will provide some welcome comfort for users of news aggregation services such as Meltwater, following less favourable judgments from the High Court and Court of Appeal.

Background to the Meltwater litigation

Meltwater operates an automated software programme which monitors news coverage for customers. Meltwater’s customers supply the search terms, and Meltwater produces a monitoring report with links to news stories which may be of interest to the customer. The Newspaper Licensing Agency (NLA) represents a number of key publications in the UK and has historically collectively licensed reproduction and sharing of newspaper articles. The report can be accessed by email or through Meltwater’s website.

A series of court cases have taken place on various issues relating to the extent to which licences are required from the NLA to provide and use news aggregation cases. Last year, the courts held that companies providing news aggregation services required a licence from the NLA to incorporate content from the NLA’s members.

The issue

The crux of this appeal is whether Meltwater’s customers need a licence to receive this service if the report was only made available on Meltwater’s website.

When an end user views a web-page on his computer, without downloading the content, the technical processes involved requires temporary copies to be made on screen and in the internet “cache” on the device. The end-user views the material online and permanent copies are not made unless downloads or prints of the image are made.

However copies are temporarily retained on the screen or in the cache of the computer – an incidental technical consequence of using a computer to view the online material. Those cached copies may subsist for minutes or months, depending on the size of the cache and the user’s browser settings.

The law

Section 28A of the Copyright, Designs and Patents Act 1988 deals with temporary copies of copyright material on a computer. This section gives effect to Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

Article 5.1 of the Directive states that copying is restricted to “temporary acts of reproduction” which are “transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable – a transmission in a network between third parties by an intermediary, or a lawful use. ”

Both the High Court and the Court of Appeal interpreted Section 28A very narrowly, and held that Meltwater’s customers would require a licence to view this information.

The court’s decision

Lord Sumption held that when a person viewed an online webpage, the temporary copies made in the cache of the computer did not amount to copyright infringement.

Lord Sumption referred to recitals in the Directive, which state that the exception should apply to “acts to enable browsing”. Lord Sumption also considered recent cases from the ECJ relevant to the issue, including the ECJ’s decision in relation to the use of foreign satellite TV decoder cards by pub landlords.

In that case, brought by the FA Premier League, it was held that simply watching live TV broadcasts would not infringe copyright. That being the case, there could be no rational distinction between the law applying to viewing content on a television and viewing content on a computer. Interestingly, the consequence of this is that even the act of viewing illegally uploaded content would be within the scope of the exemption in Article 5.

Referral to the ECJ

However, Lord Sumption acknowledged that “the issue has a transnational dimension. The application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility” and for that reason the Supreme Court has referred the question to the Court of Justice of the European Union.

Previous decisions of the ECJ suggest that the ECJ will agree with Lord Sumption’s view. Internet users across the EU will await that judgment with interest.

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Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection (including the GDPR), and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.
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