04 August, 2014

Can You Infringe Copyright by Browsing the Internet?

Browsing the web can be full of pitfalls, both legally and in terms of your own safety. It's this world that we endeavor to navigate on our times surfing, but often don't think about the unknown issues or are blissfully unaware of the implications of our digital actions. It's because of this many things can slip through the cracks. Web browsers have made temporary copies of the content we read, look at and watch for years, more often than not without our knowledge, and this can present legal issues when dealing with copyrighted content, whether we want it or not. Whether just innocent surfing can infringe copyright is an interesting question, and this writer for one automatically thought the answer would be obvious, yet one would be surprised about the nuances behind the answer.

The case which dealt with this interesting conundrum was Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd, having been referred to the European Court of Justice by its UK counterpart earlier on in 2013. The Public Relations Consultants Agency (PRCA) is an association public relations professionals, who among other duties monitor the news for their clients, clearly to safeguard or preempt any potential PR disasters. The members of this association used a service provided by the Meltwater group of companies; one which used software to automatically compile an index of words used by newspapers in their content online. To better utilize this service Meltwater's clients provide them with a list of search terms which interest them, which are then used to create an index which is oriented around those key words. In the service's results the opening words of the article, the key word and a few surrounding words and a hyperlink are provided for the client, allowing them to find the article containing their desired content more easily. The service does not circumvent any paywalled articles, and the client will have to pay for that specific content should they wish to view it. The respondents of the appeal objected to this use of their content, and took the Agency to court, culminating in the UK Supreme Court in the earlier part of 2013.

The button that all internet users wished existed for certain purposes
The question faced by the ECJ therefore was, as iterated by the Supreme Court: "The question which arises on this appeal is whether [Internet users reading the an article online] are nonetheless infringing copies unless licensed by the rights owner [by creating temporary copies of those works]". More specifically whether this infringes Directive 2001/29/EC, and through which the Copyright, Designs and Patents Act 1988.

Under Article 5 of the Directive incidental copies are treated as not infringing copyright should they be "... temporary, transient or incidental, which are an integral and essential part of a technological process and whose sole purpose is to enable... a transmission in a network between third parties by an intermediary, or a lawful use... and has no independent economic significance". Arguably, on the face of it, the matter is quite clear-cut, as temporary copies are essential to how the internet functions and how we both conserve and make internet traffic more efficient. Nonetheless, the matter is still not that simple, at least from a legal perspective.

The court quickly saw that the temporary copies made through the viewing of websites indeed do satisfy the first requirement under Article 5, as the copies are lost once the user moves on from the website and other content is subsequently brought in to replace the temporary copies of the prior page. This makes those copies wholly temporary in nature. The court then moved on to the third requirement, under which the copies have to be essential for the technology to work properly; or as presented in Infopaq International v Danske Dagblades Forening: "...first, the acts of reproduction are carried out entirely in the context of the implementation of a technological process and, secondly, the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts". As the user has to say (mostly) in the creation or deletion of these copies, the technology needs for those copies to be created in order to function as intended, as they are a part of its process. The copies are, as said above, essential to the internet's proper function and help prevent excess volumes of traffic, which would undoubtedly choke the internet beyond use. The court seemed quite satisfied with the technology satisfying the second requirement, meaning that the technology is needed for the process to function properly and efficiently, and therefore satisfies the third requirement.

Under the second requirement the copies have to be transient or incidental, and as the copies, as stated above, are deleted once the user switches to a different page, they are transient, even if there is some level of human intervention in their deletion. Finally, the copies are created as a part of the technology which uses them, and do not by themselves exist independent of it nor have a purpose outside of it, making the copies incidental for the purposes of Article 5. The court therefore saw that the temporary copies created during web browsing do not infringe copyright and are excluded as a part of Article 5.

As one can see the ECJ's decision was one of pragmatism and common sense. The prevention of transient copies in the viewing of content on the web would be detrimental to how the internet functions today, potentially even causing issues in its overall usability. As said above the answer to the question seemed obvious, and quite frankly, should not have even been argued in court this far. The matter will be passed onto the Supreme Court to decide on ultimately; however the ECJ's word is a powerful one and clearly demonstrates an unwillingness to compromise the net as we know it for the sake of copyright.

Source: The Guardian

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