On 5 June 2014, the Court of Justice of the European Union (the “ECJ”) held that browsing websites without first obtaining the authorisation from the copyright holder does not infringe copyright.
The copyright issue was raised by publishers in the United Kingdom regarding temporary copies of websites generated by an end-user on the Internet while browsing.
When viewing a website, users make a copy of the website that is displayed on their computer screen (the “on-screen copies”) and in the Internet cache of the computer’s hard disk (the “cached copies”). The ECJ was asked to decide whether these reproductions could benefit from the exemption from the obligation to obtain authorisation from the copyright holders provided for in Article 5(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the “Copyright Directive”).
Under the Copyright Directive, a reproduction may only benefit from this exemption if it satisfies the following conditions:
(1) The copy is temporary. On-screen copies are deleted when the internet user moves away from the website viewed and cached copies are normally automatically replaced by other content after a certain time. Accordingly, the ECJ decided that on-screen and cached copies satisfy this condition.
(2) The copy is either transient or incidental. A copy is transient if its duration is limited to what is necessary for the technological process used to work properly. Since on-screen copies are automatically deleted when the user closes the browser, they are transient. A copy is incidental if it neither exists independently of, nor has a purpose independent of the technological process from which it forms part. Because the technological process in question works less efficiently without cached copies and because these copies cannot be created outside of that process, they must also be regarded as incidental.
(3) The copy is an integral and essential part of a technological process. Both on-screen copies and cached copies are made entirely in the context of the technological process at issue. As such, they are an integral part of that technological process. Furthermore and as already mentioned, the absence of cached copies renders the process less efficient. Moreover, it is not contested that on-screen copies are necessary for the process to function correctly and efficiently. Consequently, both copies are an essential part of the technological process at issue.
(4) The copy’s sole purpose is to enable a transmission. As stated previously, both copies are required for the technical process to take place. They are the automatic result of browsing the Internet.
(5) The copy must not have an independent economic significance. When browsing the Internet, the user does not set out to make a copy of the image unless he downloads or prints it. His aim is solely to view the content of the website.
All criteria being met, the ECJ found that on-screen copies and cached copies could benefit from the exemption laid down in Article 5 (1) of the Copyright Directive. However, in order to be able to rely on the exemption, these copies must also satisfy the three-step test provided for in Article 5 (5) of the Copyright Directive.
According to the ECJ, both copies fulfil the three-step test as (1) they constitute a special case, being created only for the purpose of viewing websites; (2) they do not conflict with the normal exploitation of the work since the creation of these copies is part of the viewing process of websites and; (3) they do not unreasonably prejudice the legitimate interests of the right holders. Publishers making content available on websites have to obtain the authorisation from the copyright holder. There is thus no justification for requiring Internet users to obtain an additional authorisation.
