Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—
(a)a transmission of the work in a network between third parties by an intermediary; or
(b)a lawful use of the work;
and which has no independent economic significance.
Cases considering section 28A 8
[2011] EWCA Civ 890 · 27 July 2011Interprets
Interprets the temporary-copy exception as requiring cumulative conditions. Copies voluntarily made to receive and read a work were not integral to the technological process and had independent economic significance (see paras [30]-[35]).
[2026] EWHC 2165 (Ch) · 13 August 2026
The court held that temporary copies made during ordinary web browsing satisfied the statutory conditions, including the absence of independent economic significance. (see paras [227]-[239])
The court accepted that browsing copies enabled transmission in a network by an intermediary or a lawful use of the work, satisfying the relevant statutory purpose. (see paras [227], [230]-[231])
The court accepted that ordinary browsing involved a lawful use of the photographs for the purposes of the temporary-copy exception, absent exploitation of the temporary copies themselves. (see paras [230]-[239])
[2011] EWHC 2977 (Pat) · 14 November 2011
Applies the temporary-copy defence to transient copies lacking independent economic significance, but leaves its success dependent on whether the underlying use is lawful. Advertising revenues did not confer independent economic significance on the copies. (see paras [24], [28]–[31])
What each judgment says about section 28A is in the case-law panel in the full Act.