Could you be infringing copyright simply by stumbling upon unlawful copies when browsing the internet? Gordon Harris, Nick Cunningham and Bonita Trimmer examine a recent case that has implications for millions of web users

The Newspaper Licensing Agency v Meltwater is an internet copyright case with "implications for many millions".

The English Supreme Court has said that temporary copies made automatically when browsing the web should not usually infringe copyright. As the issue is of importance to everyone who uses the internet, the court has referred it to the Court of Justice of the European Union (CJEU).

Meltwater provides an online newspaper clippings service that provides brief extracts from newspaper articles, and links to the articles, against a subscriber's search terms. It sends reports by email to its subscribers or provides them with online access to them. The issue for the court was whether, if Meltwater only provided its reports online, its subscribers would still need a licence to view them.

The question turns on interpretation of an exception to copyright infringement for "temporary copies" under article 5.1 of the 'InfoSoc' Directive (2001/29/EC). Broadly, article 5.1 permits temporary copies automatically produced as an integral part of a technological process.

The English High Court and Court of Appeal have previously decided (in The Newspaper Licensing Agency's favour), that this does not apply to temporary copies made without the copyright owner's permission. This is because the copies are made as a result of a deliberate decision by the user, and are not lawful copies.

The Supreme Court has now reviewed decisions of the CJEU made since the earlier decisions in this case and has said that those earlier decisions are no longer sustainable. Once it is accepted that the purpose of article 5.1 is to enable internet browsing, the interpretation made of it by the High Court and the Court of Appeal unravels and is too restrictive.

For instance, in Karen Murphy v Media Protection Services Ltd the CJEU established that, for the purposes of article 5.1, "a use should be considered lawful where it is authorised by the right holder or where it is not restricted by the applicable legislation". A use of copyright material is therefore 'lawful' if it is consistent with EU legislation governing the reproduction right (including article 5.1 itself). In the Supreme Court's view, "part of the purpose of article 5.1 is to authorise the making of copies to enable the end-user to view copyright material on the internet".

There are other criteria: the storage and deletion of the copyright material must be completely automatic, and the copy must not exist for any longer than is necessary for the technological process. In practice, when viewing a website, temporary copies remain in a device's cache until they are overlaid with other material, and the copy on a user's screen may remain there for an indefinite period, depending on what the user does. However, this can all be said to be part of the technological process and it is clear the Supreme Court considers that article 5.1 should apply in these circumstances.

The application of article 5.1 to ordinary internet browsing has "important implications for many millions of people across the EU". To ensure a uniform approach the Supreme Court has decided to make a reference to the CJEU.

As the Supreme Court noted: "If it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web page containing copyright material in the course of browsing. 

"This…would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes."

Finally, echoing the CJEU's approach in the Karen Murphy case and the UsedSoft case, the Supreme Court was not concerned by the argument that its decision would upset the right owners' current business model. It stated: "At the moment, the licence fee payable by Meltwater is fixed on the basis that its customers need a licence of their own from the publishers and that the service will be supplied only to end-users who have one. 

"It seems very likely… that the licence fee chargeable to Meltwater will be substantially higher if end-users do not need a licence because on that footing the value of the rights for which Meltwater is licensed will be significantly higher… it is altogether more satisfactory that a single large licence fee should be payable representing the value to the person who puts the material onto the internet, than that tiny sums should be separately collectable from hundreds (in other cases it may be millions) of internet viewers."

Gordon Harris and Nick Cunningham are partners and Bonita Trimmer is an associate at Wragge & Co.