Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited and others

The Supreme Court considered whether temporary copies created in the course of viewing web pages on an end-user's computer fall within the exception to the reproduction right in Article 5(1) of Directive 2001/29/EC (implemented in the United Kingdom by section 28A CDPA). The court applied the Court of Justice's five-part formulation (temporary; transient or incidental; integral and essential part of a technological process; sole purpose to enable transmission by an intermediary or a lawful use; no independent economic significance) as explained in Infopaq I, Infopaq II and the Premier League case.

The court held that temporary screen and cache copies made in ordinary internet browsing are an integral and essential part of the technological process of browsing, are transient in the sense required by the case-law (storage and deletion are automatic, not dependent on discretionary human intervention), constitute a lawful use for the purposes of Article 5(1)(b) and have no independent economic significance when merely viewed (as opposed to downloaded or printed). For these reasons Article 5(1) in principle applies to end-user viewing on the internet.

Because the question has important EU‑wide implications, the court concluded that a preliminary reference to the Court of Justice of the European Union was desirable on a precisely formulated question about whether the requirements of Article 5(1) are satisfied by the technical features of ordinary browsing, and proposed to remit the matter for that reference before making final orders.

Background and parties. The appellant is an association of public relations professionals. The dispute concerns the Meltwater monitoring service, which indexes newspaper websites and supplies customers with monitoring reports containing short extracts and hyperlinks. Meltwater took licences from publishers; the central issue was whether Meltwater's customers require a licence in order simply to view the monitoring report on Meltwater's website (distinct from receiving a persistent e-mail copy).

Nature of the claim / relief sought. The appeal raised the legal question whether temporary copies made on an end-user's screen and in the browser cache when viewing a web-page infringe the reproduction right unless authorised by the rightholder, or whether they are exempt under Article 5(1) of Directive 2001/29/EC (and section 28A CDPA). The lower courts (Proudman J at first instance and the Court of Appeal [2011] EWCA Civ 890) had held that a licence was required for viewing even on-screen or in the cache.

Issues framed by the court. (i) Whether Article 5(1) applies to temporary copies made by end-users when browsing the internet; (ii) whether such copies satisfy the Article 5(1) conditions: temporary/transient/incidental; integral and essential part of a technological process; sole purpose of enabling a transmission by an intermediary or a lawful use; and no independent economic significance; (iii) whether, having regard to the Court of Justice case-law (Infopaq I & II, Premier League), a preliminary reference to the Court of Justice was required.

Reasoning. The court examined the Directive and the CJEU decisions. It rejected the argument that Article 5(1) is confined to intermediaries and router/proxy caches and held that recital 33 and the CJEU authority show the exception was intended to include acts enabling browsing by end-users. Applying the fivefold test, the court found as a matter of principle that screen and cache copies are integral and necessary to browsing, that their storage and deletion are automatic in ordinary use (so their duration is limited to what is necessary for the technological process and not dependent on discretionary human intervention), that viewing is a "lawful use" for Article 5(1)(b) purposes even when not authorised by the rightholder (following Premier League), and that such temporary copying lacks independent economic significance where the user merely views rather than downloads or prints. The court also addressed policy concerns about piracy and concluded that those concerns did not outweigh the statutory and CJEU framework.

Disposition. Because the question is of EU‑wide importance and involves application of Article 5(1) to particular technical features of browsing (duration of cache retention and screen display), the court considered it desirable to refer a focused question to the Court of Justice for a preliminary ruling and invited counsel to prepare a draft reference before making final orders.

The Supreme Court (Lord Sumption, with whom the other members agreed) held that, in principle, Article 5(1) of Directive 2001/29/EC (and the corresponding domestic provision, section 28A CDPA) can apply to temporary copies made on an end-user's screen and in the browser cache during ordinary internet browsing because such copies are an integral and essential part of the technological process, are temporary/transient in the sense required by the CJEU, enable a lawful use and have no independent economic significance. Given the EU dimension and importance of uniform interpretation, the court directed that a preliminary reference be made to the Court of Justice on a precisely formulated question about whether Article 5(1)’s requirements are satisfied by the technical features described, and accordingly the matter was remitted for that reference before final orders were made.