Judgement by the Court of Justice of the EU (“CJEU”) in the ‘Meltwater’ case was handed down yesterday. In its ruling, the CJEU held that on-screen and cached copies of a website that is generated by an end user may be done without seeking authorisation from the copyright holder.

When instituted, this case represented a potential guillotine for the internet as it went to the heart of web browsing. In brief, this case concerned the creation of temporary copies of a website by an end user and whether the end user required a licence from the copyright holder when making such temporary copies. In view of the wide spread ramifications such a decision would have (if found that a licence was required), the UK Supreme court referred certain questions to the CJEU. The questions postulated were:

“In circumstances where:

• an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;

• copies of that web-page are automatically made on screen and in the internet “cache” on the end-user’s hard disk;

• the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;

• the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;

• the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and

• the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;

Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC (the “InfoSoc Directive”).”

In addressing these questions, the CJEU considered Article 5(1) of the InfoSoc Directive which creates an exception to the general rule (stipulated under Article 2) that copyright owners are to have an exclusive right to authorise or prohibit reproductions (whether direct or indirect, temporary or permanent) of their works. The CJEU considered that Article 5(1) would apply where the reproduction:

i. was temporary;

ii. was transient/incidental

iii. formed an integral essential part of the technical process

iv. had, as its sole purpose, the enablement of a transmission between a network and third parties by an intermediary; and

v. had no independent economic significance.

The UK Supreme Court had already determined that on-screen and cached copies satisfy conditions ‘iv’ and ‘v’, and accordingly, the CJEU only had to determine whether the first three applied.

The CJEU held that both the screen copy and the cached copy were within the parameters of ‘i-iii’. In making this determination, the CJEU considered the screen copy to be temporary as it remained available until the end-user navigated to another page. The cached copy also had a temporary nature as it was automatically deleted in the normal course of operations of the computer. Regarding the transient or incidental nature of the copy, the CJEU held that the cached copy was incidental since it was used for the purposes of web browsing and did not exist independently. In terms of being transient, EU case law provided that a copy was transient if its duration was limited to what is necessary to for a process to work properly – in this case, since the onscreen copy needed to be open for the process to work and then once navigated away from was not present, it was deemed transient.

Regarding the final point – a reproduction integral to an essential part of the technical process – the CJEU held that on-screen copies and cached copies were integral to browsing the internet.

Having concluded that the copies fell within the exemption under 5(1) of the InfoSoc Directive, the CJEU had to then consider, as with all copyright exceptions, the overarching principle that the use satisfies the 3 step test laid out in the Berne Convention. Given that the copies were for the purpose of viewing websites – therefore a special case, that they did not unreasonably prejudice the legitimate interests of the copyright holder (since the publishers needed to obtain authorisation from the right holder to publish); and the copies did not conflict with a normal exploitation of the work, the 3 step test was satisfied.

Accordingly, the CJEU considered that no authorisation was required for the creation of copies of websites that were generated by the end user. This case has important implications and confirms that internet browsing can remain as is without the need to obtain a licence from a right holder when carrying out those acts that were the subject of this dispute.