'Merely viewing a web page' does not breach copyright, Supreme Court says

The Supreme Court has made it clear that it does not believe that merely viewing copyright material on the internet is an infringement of the owner's rights.

Giving judgment on behalf of the court in the Meltwater case, Lord Sumption said that this would not leave copyright owners without effective remedies against pirates, it simply meant they must be "found against others who on the face of it are more obviously at fault".

He said that if it was an infringement merely to view or read copyright material on the internet, without downloading or printing it, then people who browsed the web were "likely unintentionally to incur civil liability".

Lord Sumption said seemed an "unacceptable result" which "would make infringers of many millions of ordinary users of the internet across the EU".

He was delivering judgment on behalf of the court in Public Relations Consultants Association (PRCA) v Newspaper Licensing Authority [2013] UKSC 18.

The court heard that the PRCA among other things, monitors news coverage on behalf of clients.

The Meltwater group of companies provides services to the association by using automated software programmes to create an index of words appearing on newspaper websites.

"Meltwater's customers provide them with search terms of interest to them, and Meltwater produces a monitoring report listing the results of a search of the index for those keywords," Lord Sumption said.

"For each search hit, the monitoring report will present the opening words of the article, the keyword together with several words on either side of it, and a hyperlink (in the form of a reproduction of the headline) which enables the user to access the article on the relevant source website.

"It should, however, be noted that if that website has a paywall, the link will not enable the user to avoid it."

Lord Sumption said the "real question" was whether Meltwater's customers would need a licence to receive its service if the monitoring report were made available only on Meltwater's website, and not by email.

"Obviously, to the extent that the customer downloads the report from the website he is making a copy that will infringe the newspaper's copyright unless he is licensed. But what if he merely views the material on the website?"

Lord Sumption said that article 5.1 of Directive 2001/29/EC created an exception to copyright protection for "temporary acts of reproduction".

He said the courts below would not have held that Meltwater customers needed a licence both to receive monitoring reports by email and to access them on the website if they had the benefit of the latest CJEU judgments in the Premier League and Infopaq cases.

"In particular, the far broader meaning given by the Court of Justice in these cases to the concept of 'lawful use' makes it impossible to confine the scope of the exception to the internal plumbing of the internet.

"Once it is accepted that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end-user, much of the argument which the courts below accepted unravels."

However, because the issue had a "transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU", Lord Sumption said it should be referred to the Court of Justice for a preliminary ruling.