Last month, a landmark ruling on the internet was handed down by the Court of Justice of the European Union (CJEU) that deemed internet users should not penalised for viewing content without the permission of copyright holders.
As such, it is only those who distribute content without a license who are liable for copyright infringement, allowing scores of web browsers across the world to breathe a collective sigh of relief.
To get the full story behind the 'Meltwater' decision and its ramifications, we spoke to Jeremy Blum, a partner at London law firm, Bristows.
TechRadar Pro: So what brought about this ruling in the first place?
Jeremy Blum: The Meltwater decision arose from a reference to the CJEU by the UK Supreme Court. The question the CJEU considered was whether copies created on a user's computer when viewing a webpage onscreen fell within an exception to copyright infringement.
The question was referred because parts of copyright law have been harmonized by European legislation and the CJEU is the highest court that can decide on such issues.
The reference to the CJEU arose from proceedings in the UK. The claimants were newspaper publishers and a collecting agency for newspaper content. The defendants were a media watching agency (Meltwater) and its clients who used the service represented by the Public Relations Consultants Association.
Meltwater 'scraped' news websites for relevant news items for its client end users based on clients' requests. A report was sent to client end users which was sent by an email and was accessible on a webpage.
The report had three items to it. The first were hyperlinks which was a citation of the news article headline, the second was the opening words of the news story and the third was an extract from the article.
The question the CJEU had to consider was whether there was an exception to copying for those end-users who viewed the webpage report onscreen as a result of the copying that took place in order for them to view the webpage. When viewing a webpage a copy is created on screen and cached in the user's hard drive.
This technological process occurs because a copy is required to be made otherwise the viewing process would be inefficient and take more time. The user has no intention to copy, it is an automatic part of the technological process of viewing a webpage.
The UK Supreme Court had made a provisional decision that a user was not liable for copyright infringement by viewing copyright material onscreen. The UK High Court and Court of Appeal earlier said that by viewing a copyright protected work onscreen a user made a copy and that their use did not fall within the exception.
However, the UK Supreme Court disagreed and said if creating copies when viewing a website onscreen was not within the exception, then there would be an unacceptable result of millions of people browsing the internet being held liable simply by unintentionally viewing website material that happened to be infringing copyright.
Because of the implications of the decision, the Supreme Court made a reference to the CJEU for guidance on how to interpret the exception to copying.
TRP: What is the exception?
JB: Reproducing a copyright work is the exclusive right of the copyright holder. If a party copies without authorisation it will fall in the exclusive rights of the holder and could infringe. In certain special cases there is an exception to copying. The exception sets out a number of criteria.
The reproduction must be transient or incidental and an integral part of a technological process with the sole purpose behind the copying is to enable a transmission in a network or a lawful use. Finally, there is a specific requirement that the exception shall only be applied if it does not unreasonably prejudice the legitimate interests of the rights holder.
TRP: Why is there an exception to copying?
JB: The rationale behind the exception is that it allows for innovation as technology should not be stifled by incidental copying during a technological process.
The exception was not primarily drafted to prevent end user liability but was to enhance the digital age and technological innovation because there was a concern that rigid copyright laws would hinder innovation in particular if incidental temporary copying occurred in order to transmit a copyright work.
TRP: What is the importance of the ruling?
Once again the workings of the internet were subject to scrutiny and the CJEU found that the exception to copying applied when a user was viewing copyright works onscreen.
In essence the CJEU was weighing up the rights of copyright holders with the ability of the internet to continue to function properly based on current technologies. The CJEU recognised that if the copying exception did not apply to on screen browsing, then that could interfere with the workings of internet technologies as well as effectively finding that simply 'viewing' was an infringing act.
The fact that a user elected to go to a website did not confer liability on them for viewing the work on screen.
The decision has important implications that individual internet users will not be found liable for their on screen browsing, even if they intentionally seek out to view material that is pirated.
The ruling to some degree ensures the current process for viewing webpages can continue in its current form because if the exception did not apply to viewing webpages, to avoid millions of users being liable, the solution would have been to evolve the technological process of browsing so that copies were no longer created in order for browsing to take place.
For now at least new technological processes for viewing webpages can evolve organically rather than as a consequence of the law interfering.
TRP: Could such a ruling therefore open the gates for abuse> For example, illegally downloaded videos being treated as temporary?
JB: There is the potential for abuse and that is why the result will be frustrating for copyright holders. The ruling means the exception applies to on screen viewing of copyright works whether the user unintentionally or intentionally wished to view unauthorised copyright works.
It should be noted that the decision only applies if the reproduction fits all the criteria of the exception, so in the case of a downloaded pirated movie, because the copy is stored for later use, it is not temporary or an integral part of the technological process to view the work it will continue to be an infringement.
Though streaming was not specifically considered, the implication of the judgment is that users who intentionally watch onscreen pirated movies will probably not be infringing if they only view the movie and do not download it.
Rights holders would have hoped the CJEU would construe narrowly the exception so they could pursue those individuals who intentionally viewed infringing material. Now their options are limited to pursue those who upload or make available the infringing content.
The CJEU recognised the exception could only apply if it did not conflict with the rights of rights holders and said that rights holders had the ability to rely on other rights to stop copyright works being available on the internet so their rights were not unreasonably prejudiced.
The difficult part for rights holders is that stopping the source of pirated material is an onerous task that is analogous to playing 'whack a mole' as they often reappear after being taken down.
TRP: Could emerging technologies like Google Glass and the internet of things potentially change the judgement?
JB: Current copyright legislation was revised during the 1990s as legislators recognised that the law needed updating to respond to new exploitation of copyright works in the digital environment and to ensure that the legal framework was flexible to foster the development of the information society.
No doubt future technologies will force a further reconsideration of the exception to copying in the future and could potentially require further guidance from the CJEU.
Most likely it will depend on how critical the technology at issue is to commerce and though the CJEU did not express it in its decision, it was material that if copying in order to view websites fell outside the exception to copying there would have been wide scale implications for commerce as well as the normal functioning of the Internet.
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