The Supreme Court in the UK gave its decision in the latest round of the links-and-snippets news cases on April 17th. The case is about the Meltwater news service. Meltwater trawls the internet for articles containing search words its end-user clients have given it. The end-users receive results by email or by viewing them on Meltwater’s website. The results include links to articles cited in the results and a 256 character extract from each article.
Meltwater has a licence and pays for its activities. The question in the appeal was whether or not the end-user also needs a licence when he or she uses the service simply by viewing the material on Meltwater’s website.
The law frequently appears an ass and this may be another example. Browsing and caching may cause your computer to make and temporarily retain copies of material, but you simply cannot use the internet without looking at webpages and creating the cached copies that support browsing. In fact the law does allow for this, in an exception for temporary copies designed specifically to facilitate internet use which is mandatory for all EU Member States. The question in this case is whether that exception applies to the activities of the Meltwater users.
There are no fewer than five conditions to the temporary copy exception, and here perhaps the law begins to grow donkey’s ears again, especially when it is exposed to the argument that a copy is not temporary if the user turns off his or her computer for the evening and goes home, leaving the temporary copy to reside on the computer overnight before being overlaid by new material the following morning. Or when a screen copy is left open for a protracted period.
The decision is happily notable for a succinct and clear summary of the case law of the CJEU on the five conditions of the temporary copy exception, developed -since Meltwater commenced- in Premier League and Infopaq II. Lord Sumpton said:
The purpose of these formulations is plain. It is to distinguish between the use of a computer or other equipment simply to view the relevant material, and its use to record it. The object ….is to ensure that the exception does not apply to protect downloading or other forms of digital or physical copying which will remain in existence until the user chooses to delete or destroy them and are therefore as permanent as he chooses to make them.
So, in the absence of some other intervening act of reproduction by the end user, it is clear that the viewing of protected material on screen and the making of the inevitable cached copy in the computer to facilitate browsing are exempt. If however the user downloads or makes physical copies, the temporary copy exception is exceeded.
While not in any doubt about its decision, the Court decided to make a reference to the CJEU before making an Order, for the reason that the case has a transnational dimension and important implications for many millions of users across the EU, and so that “the critical point may be resolved in a manner which will apply uniformly across the European Union”.
This case is now a companion-piece to the Swedish reference in the Svensson case, already awaiting hearing by the CJEU. Both cases involve news and media monitoring services. In Svenssen the issue is the act of providing a hyperlink. In this case it is browsing and caching. It may seem strange that these, the most fundamental tools on which internet use depends are still being litigated. There’s that donkey again….
Public Relations Consultants Association Limited (Appellent) v The Newspaper Licensing Agency Limited and Others (Respondents),[2013] UKSC 18.
