Summary

The Supreme Court proposed to refer to the European Court of Justice the issue of whether copies of protected material temporarily retained in the internet cache or on the end-user's screen fell within the exception provided for by Directive 2001/29 art.5(1).

Facts

The appellant (P) appealed against a decision ([2011] EWCA Civ 890, [2012] Bus. L.R. 53) that a web end-user licence was required to lawfully use and receive content in the form of clippings and headlines sourced by media-monitoring organisations which trawled a multitude of websites using search terms selected by the end-user.

P was a professional association of public-relations professionals who, among other things, monitored news coverage on behalf of clients. Services were provided to P's members by a group of companies (M). M used automated software programmes to create an index of words appearing on newspaper websites. M's customers provided search terms of interest to them, and M produced a monitoring report listing the results of a search of the index for those keywords. For each search hit, the monitoring report would present the opening words of the article, the keyword together with several words on either side of it, and a hyperlink (in the form of a reproduction of the headline) which enabled the user to access the article on the relevant source website. M sent the monitoring report to the customer by email or the customer would access it on M's website. The issue was whether M's customers would need a licence to receive its service if the monitoring report were made available only on M's website. That issue in turn involved the question of protected works which were temporarily retained on the end-user's screen or in the internet cache as an incidental consequence of the end-user's use of a computer to view the relevant material. The question was whether those temporary copies were infringing copies unless licensed by the rights-owner.

Held

The answer to that question was no. A consideration of the relevant decisions of the European Court of Justice showed that the conditions of Directive 2001/29 art.5(1) were satisfied, Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2012] Bus. L.R. 102, Football Association Premier League Ltd v QC Leisure (C-403/08) [2012] All E.R. (EC) 629 and Infopaq International A/S v Danske Dagblades Forening (C-302/10) applied. Article 5(1) extended in principle to temporary copies made for the purpose of browsing by an unlicensed end-user. However, the issue had a transnational dimension and the application of copyright law to internet use had important implications for many millions of people across the EU making use of what had become a basic technical facility. Those considerations made it desirable that any decision on the point should be referred to the ECJ for a preliminary ruling before an order was made on the appeal, so that the critical point could be resolved in a manner which would apply uniformly across the EU. The ECJ would therefore be asked to rule on whether copies of protected material temporarily retained in the internet cache or on the end-user's screen fell within the exception provided for by art.5(1). Counsel were invited to comment on the proposed issue to be referred and to prepare and, if possible, agree a draft reference for consideration.

Judgment accordingly