The Court of Justice of the European Union (CJEU) has delivered its judgment in Public Relations Consultants Association Ltd (PRCA) v Newspaper Licensing Agency Ltd and Others, Case C-360/13. The CJEU confirmed that internet users who read an article on a media monitoring website do not require a copyright licence from the publisher, as it falls within an exception to copyright infringement.
The decision provides reassurance to internet users that they can view media monitoring reports online without fear of liability for copyright infringement.
In 2009, the Newspaper Licensing Agency (NLA), a body set up by newspaper publishers in the UK, introduced a compulsory licensing regime for media monitoring firms that use content from newspaper websites.
Meltwater offers media monitoring services, which involves scanning newspaper websites for articles containing keywords which its end-users had given it. Meltwater then produces a monitoring report listing the results of a search for those keywords. The monitoring report contains the opening words of the article 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. Meltwater sends the monitoring report to the end-user by email or the end-user accesses it on Meltwater’s website.
It was accepted by Meltwater that it had infringed copyright by copying certain news headlines and making the summary and including it in the report by sending it to an end-user. Accordingly, Meltwater agreed to purchase a licence for itself, but it did not agree that its client end-users (PR professionals) also needed a licence in order to use Meltwater’s services.
The UK High Court and Court of Appeal found that members of the PRCA (an association of PR professionals), need a copyright licence to receive the monitoring reports by email and to access them on Meltwater’s website. It was held that headlines are capable of being original literary works and that extracts containing opening words can be a substantial part of an original literary work.
It was accepted by Meltwater that the email containing the monitoring report constituted an infringing copy, as it is not temporary, but rather is stored on the recipient’s hard drive until the end-user chooses to delete it. Accordingly, the question on appeal to the Supreme Court was whether end–users need a licence to view the monitoring report if it were only made available on Meltwater’s website, and not downloaded or printed out (i.e. whether copyright infringement would occur by reason of the creation of on-screen copies and cached copies, without authorisation of the rights holders to make such copies). The Supreme Court felt that the exception in Article 5(1) of the Copyright Directive applied and as such, a copyright licence should not be required by end-users. Article 5(1) provides an exception to copying if the copying is done on a temporary and transient basis, is an integral part of the technological process and the sole purpose behind the copying is to enable a transmission in a network or a lawful use.
The Supreme Court referred the matter to the CJEU for clarification, due to the possible implications of the decision for internet users on an EU-wide scale.
The CJEU held that the exception in Article 5(1) of the Copyright 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 that they may therefore be made without the authorisation of the copyright holders.