Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2014:1195
• Date: 05 June 2014
• Docket Number: C‑360/13
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fourth Chamber)

5 June 2014 ( *1 )

‛Copyright — Information Society — Directive 2001/29/EC — Article 5(1) and (5) — Reproduction — Exceptions and limitations — Creation of copies of an internet site on-screen and in the cache of the hard disk in the course of browsing the internet — Temporary act of reproduction — Transient or incidental act — Integral and essential part of a technological process — Lawful use — Independent economic significance’

In Case C‑360/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom (United Kingdom), made by decision of 24 June 2013, received at the Court on 27 June 2013, in the proceedings

Public Relations Consultants Association Ltd

v

Newspaper Licensing Agency Ltd and Others,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Safjan, J. Malenovský (Rapporteur), A. Prechal and K. Jürimäe, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Public Relations Consultants Association Ltd, by M. Hart, Solicitor,

— Newspaper Licensing Agency Ltd and Others, by S. Clark, Solicitor,

— the United Kingdom Government, by L. Christie, acting as Agent,

— the Italian Government, by G. Palmieri, acting as Agent, and by M. Santoro, avvocato dello Stato,

— the Polish Government, by B. Majczyna, acting as Agent,

— the European Commission, by J. Samnadda, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

2 The request has been made in proceedings between Public Relations Consultants Association Ltd (‘the PRCA’) and Newspaper Licensing Agency Ltd and Others (‘the NLA’) concerning the obligation to obtain authorisation from the copyright holders for the viewing of websites where this involves copies of those sites being made on the user’s computer screen and in the internet cache of that computer’s hard disk.

Legal context

EU law

3 Recitals 5, 9, 31 and 33 in the preamble to Directive 2001/29 are worded as follows: ‘(5) Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation. … (9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. … … (31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter, must be safeguarded. … … (33) The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.’

4 Article 2(a) of that directive states: ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works …’.

5 Under Article 5(1) and (5) of Directive 2001/29: ‘1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental, which are an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. … 5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

United Kingdom law

6 Article 5(1) of Directive 2001/29 was transposed into national law by section 28A of the Copyright, Designs and Patents Act 1988.

The dispute in the main proceedings and the question referred for a preliminary ruling

7 The PRCA is an association of public relations professionals. Those professionals use the media monitoring service offered by the Meltwater group of companies (‘Meltwater’), which makes available to them, online, monitoring reports on press articles published on the internet, those reports being compiled on the basis of key words provided by the customers.

8 The NLA is a body set up by the publishers of newspapers in the United Kingdom for the purpose of providing collective licensing of newspaper content.

9 The NLA took the view that Meltwater and its customers were required to obtain authorisation from the copyright holders for, respectively, providing and receiving the media monitoring service.

10 Meltwater agreed to enter into a web database licence. The PRCA, however, maintained that the online receipt of the monitoring reports by Meltwater’s customers not require a licence.

11 Seised of the dispute, the High Court of Justice (England & Wales), Chancery Division, and the Court of Appeal (England & Wales) held that the members of the PRCA were required to obtain a licence or consent from the NLA in order to receive Meltwater’s service.

12 The PRCA brought an appeal against that decision before the Supreme Court of the United Kingdom, claiming, in particular, that its members do not need authorisation from rights holders when they confine themselves to viewing the monitoring reports on Meltwater’s website.

13 The NLA contended that that activity requires the authorisation of the copyright holders, in so far as viewing the website leads to copies being made on the user’s computer screen (‘the on-screen copies’) and in the internet ‘cache’ of that computer’s hard disk (‘the cached copies’). It contends that those copies constitute ‘reproductions’, within the meaning of Article 2 of Directive 2001/29, that do not come within the exemption provided for in Article 5(1) of that directive.

14 The referring court observes that the proceedings before it concern the question whether internet users who view websites on their computers without downloading or printing them out are committing infringements of copyright by reason of the creation of on-screen copies and cached copies, unless they have the authorisation of the rights holders to make such copies.

15 In this connection, the referring court states, first of all, that when an internet user views a website on his computer, without downloading it, the technical processes involved require the copies in question to be made. The creation of those copies is the automatic result of browsing the internet and requires no human intervention other than the decision to access the website in question. The on-screen copies and the cached copies are retained only for the ordinary duration of the processes associated with internet usage. In addition, the deletion of those copies does not require any human intervention. It is true that the cached copies may be deleted deliberately by the internet user concerned. However, if the internet user does not do this, those copies are normally replaced by other content after a certain time, which depends on the capacity of the cache and the extent and frequency of internet usage by the internet user concerned.

16 Next, the referring court states that the on-screen copy is an essential part of the technology involved, without which the website cannot be viewed, and remains on the screen until the internet user moves away from the site in question. The internet cache is a universal feature inherent in current internet-browsing technology, without which the internet would be unable to cope with current volumes of online data transmission and would not function properly. The creation of on-screen...