The 1990s were a bit weird. France won the World Cup. 90210. “Under Construction” animated gifs. Marky Mark. The Rachel. We survived with our sanity intact. Barely.
One thing that was weird as well was the obsession by copyright experts to determine the legality of hyper-linking, caching and framing; believe it or not at some point there was a legal debate about whether posting a link to a page was an infringement to copyright, which prompted an annoying trend of clueless people sending you emails asking if they could put a link to your work on their page: “I really liked your article, can I link to it in my personal page?”
Thankfully, most of these questions were laid to rest when many forms of temporary copying such as caching were made into exceptions to copyright enforcement.
Fast forward a few years, and we start seeing a resurgence of the argument that you cannot always place hyperlinks to content via a number of cases where content owners try to use copyright to defend their business models , many of which have made it all the way to the Court of Justice of the European Union (see Svensson). For the most part, the CJEU has been deciding the cases in a rational manner, and the latest result is yet another victory for sanity.
Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others (C‑360/13) is the latest in a long battle in UK courts between content aggregators and the newspaper licensing body. The referring body is the UK Supreme Court in Copyright Licensing Agency (CLA) v Meltwater  UKSC 18 which has been exploring the nature of temporary copying on the Internet by the means of indexing and caching. Meltwater News is a service that monitors newspaper websites and through the use of autonomous agents (also known as crawlers or spiders) it produces an index of all words present in those sites. This data is then sold to the members of the Public Relations Consultants Association (PRCA), thus allowing PR professionals to search with advanced tools on specific names and words in the news. The CLA sued Meltwater and the PRCA for copyright infringement, as it had put in place a licensing scheme for media monitoring organizations. The defendants claimed that their actions were lawful because any copying was transient in nature. The CLA won both the first instance and the appeal, and the case made it all the way to the Supreme Court.
The SC had to deal with the major issue of whether any copying performed by Meltwater had been temporary, and in doing so it produced an interesting discussion about the reaches of the transient copy exception. The CLA had argued that the transient copy exception only applied to actions that would enable a transmission of the work. The SC did not buy this argument at all. Lord Sumption comments:
In the first place, it is clear from the Directive’s recitals, and in particular from recital 33, that it was intended that the exception should ‘include acts which enable browsing as well as acts of caching to take place.’ Browsing is not part of the process of transmission. It is the use of an internet browser by an end-user to view web pages. It is by its very nature an end-user function.
The SC then argued that once it has been understood that the purpose of the transient copy exception is to enable users to view copyright material on the Internet, all other conditions must be read with that in mind. Lord Sumption is clear that it has never been an infringement of copyright for a person ‘merely to view or read an infringing article in physical form’.The SC gave a much wider interpretation to what constitutes lawful use than that given in the first instance and appeal stages. The SC argued that once it is accepted that temporary copies made for the purpose of browsing are made by an end-user, then it is acceptable to entertain the idea that Meltwater’s actions may be exempt as temporary copies. The SC did not decide the case, however, and referred the question of the transience of Internet communications to the CJEU.
The CJEU interpreted the referred question to mean in essence whether “whether Article 5 of Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and, if so, whether those copies may be made without the authorisation of the copyright holders.”
The court answered that any transient copies that are created as a result of browsing a website are necessary for the technical operation performed, and therefore would fall under the exceptions contemplated in the relevant copyright directive. Therefore, one does not infringe copyright by surfing the web. The Court said:
“In this connection, it should be pointed out that the viewing of websites by means of the technological process at issue represents a normal exploitation of the works which makes it possible for internet users to avail themselves of the communication to the public made by the publisher of the website concerned. Given that the creation of the copies in question forms part of such viewing, it cannot operate to the detriment of such an exploitation of the works. [...]
In those circumstances, the answer to the question referred is that Article 5 of Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.”
We must not return to the 90s, keep arguments about linking, caching and transient copies in the history books, where they belong.
Tomorrow, the CJEU will be asked to adjudicate on the sanitary arrangements of bears.