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

Temporary screen and cache copies created during ordinary internet browsing fall within the exception in article 5.1 of Directive 2001/29/EC where they arise and are deleted automatically as part of the technological process. The exception extends to an end-user’s lawful viewing and is not confined to transmission through network intermediaries.

A use may be lawful despite lacking the copyright owner’s authorisation. The copies have no independent economic significance where their value is inseparable from merely viewing the material. Downloads, printouts and other copies retained at the user’s discretion remain outside the exception.

The appellant represented public relations professionals who used Meltwater’s online news-monitoring service. Meltwater supplied reports containing extracts and hyperlinks. Although customers required a licence for reports delivered and stored by email, the dispute concerned customers who merely viewed reports on Meltwater’s website without downloading or printing them.

Proudman J held that viewing required a licence because screen and cache copies were made voluntarily by the end-user and did not enable a lawful use. The Court of Appeal upheld that conclusion in [2011] EWCA Civ 890.

The central issue was whether temporary screen and cache copies made during ordinary browsing satisfy article 5.1 of Directive 2001/29/EC and section 28A of the Copyright, Designs and Patents Act 1988. The Supreme Court also considered whether the issue should be referred to the Court of Justice for a preliminary ruling.

1. Unanimously, Lord Sumption giving the judgment with which Lord Neuberger, Lord Kerr, Lord Clarke and Lord Carnwath agreed, concluded that ordinary screen and cache copies satisfy article 5.1 of Directive 2001/29/EC. Before making a final order, however, the court proposed a preliminary reference to the Court of Justice and invited counsel to settle the question to be referred.

2. The five conditions identified in the European case law are overlapping requirements which must be read together in light of the exception’s purpose. The exception expressly encompasses browsing and caching. It is not confined to copies made during transmission by network intermediaries and can protect copies generated by an end-user.

3. A copy is temporary or transient where its creation and deletion are automatic consequences of initiating, continuing or ending the technological process, and its duration is limited to what that process requires. A user’s ability to close a computer, enlarge a cache or leave a page displayed does not alter the character of the ordinary process. Those acts merely extend an automatic process; they do not make retention dependent upon a discretionary decision to delete. Downloads, printouts and comparable records remain outside the exception.

4. Screen and cache copies are integral and essential because browsing cannot function correctly and efficiently without them. The relevant use is lawful because absence of the copyright owner’s authorisation does not, by itself, make viewing unlawful for the purposes of article 5.1(b). The copies have no independent economic significance because their value is inseparable from the economic value of reading the material on screen.

5. The copies are also incidental: their creation is merely a consequence of the technological process used to view the work. Satisfaction of article 5.1 also satisfies article 5.5. This construction treats online viewing consistently with reading or viewing physical material while preserving remedies against those who upload, distribute or retain infringing copies.

6. The reasoning of Proudman J and the Court of Appeal could not stand in light of the later decisions in the Premier League and Infopaq II cases. Given the issue’s transnational significance, the court deferred its order and proposed asking whether ordinary screen and cache copies meet the requirements of being temporary, transient or incidental, and integral and essential to the technological process.

1. United Kingdom Supreme Court: Concluded unanimously that ordinary screen and cache copies fell within article 5.1 of Directive 2001/29/EC, but proposed a preliminary reference before making a final order: [2013] UKSC 18.

2. Court of Appeal: Upheld Proudman J’s conclusion that end-users required a licence because the acts of reproduction were occasioned by the voluntary act of accessing the web page: [2011] EWCA Civ 890.

3. High Court: Proudman J held that Meltwater’s customers required a licence both for reports received by email and for reports viewed on Meltwater’s website.