Copyright Alert: Browsing Defence
The Court of Justice of the European (CJEU) has today handed down its long awaited decision in the Meltwater case, confirming the general availability of the "browsing defence" to internet users.
In April 2013, the Supreme Court took the view that mere browsing by an internet user (as opposed to copying or downloading) benefits from the exemption to copyright infringement for temporary reproduction under Article 5(1) of the Copyright Directive. The Supreme Court nevertheless decided to refer the question of the "browsing defence" to copyright infringement to the CJEU given the impact of this case on millions of internet users across Europe. For further background, see our previous IP Hub update – Copyright: Supreme Court Considers "Browsing Defence".
he CJEU has confirmed the approach of the Supreme Court in finding that browsing satisfies the first three conditions under Article 5(1) of the Copyright Directive (i) the act is temporary; (ii) it is transient or incidental; and (iii) it is an integral and essential part of the technological process. The fourth and fifth criteria had already been established by the Supreme Court.
The CJEU also noted that browsing must also satisfy the conditions laid down in Article 5(5) of the Copyright Directive. This provides that the carrying out of a temporary act of reproduction is exempt from the reproduction right only in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holders.
Whilst the Supreme Court had held that if the conditions in Article 5(1) are established, it follows that the conditions in Article 5(5) are also satisfied, the CJEU considered the Article 5(5) conditions separately. In doing so, the CJEU links the fact that the legitimate interests of the rights holders are not prejudiced on the basis that "there is no justification for requiring internet users to obtain another authorisation allowing them to avail themselves of the same communication as that already authorised by the copyright holder in question".
This decision raises an interesting question as to whether the browsing defence will be available where the internet user is browsing infringing content.
This mirrors the recent decision of the CJEU in Svensson, which, at first glance, appears to say that mere "linking" to content available elsewhere on the internet would not constitute infringement, but nevertheless appears to leave open the possibility of infringement where a website provides links to infringing content.
The Supreme Court's position on this point had been clear, by confirming that it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form, so why should viewing content on the internet be any different.
We now wait to see how the Supreme Court interprets this decision and whether this point is specifically addressed.
 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others (Case C – 360/13)
 Svensson and others v Retriever Sverige AB (Case C‑466/12)