Traditionally the reproduction right - covering copying a work - has been the cornerstone of copyright law. The scope of that right in the digital age has been called into question in the Supreme Court's decision in Public Relations Consultants Association Limited v. The Newspaper Licensing Society.
The Court looked at whether clients of media monitoring agency would need a licence to view a media monitoring report on screen. If they downloaded it to their machines or or printed it they clearly would. But, said the Court, simply viewing a web page was just like reading a book and it's never been an infringement to view or read a copy of an infringing copy in physical form.
Of course, a service provider like a media monitoring agency would need a licence to make press cuttings available online for its end-users. But if the growth of 'cloud-based' services renders redundant the notion of download, the end user's "consumption" of a work by its temporary display on screen will form an economically significant part of the service which, unless the European Court of Justice is in disagreement, will not require a licence.
True, even if the end user doesn't need a licence merely to view on screen, the content owner could still seek argue in its negotiations with the service provider (SP) that there's value to the SP in being able to make the work available to its end users, including on-screen use, and so the licence charged to the SP should reflect that. But you can see the counter argument.
The Supreme Court decided that article 5.1 of the Copyright Directive "...extends in principle to temporary copies made forthe purpose of browsing by an unlicensed end-user." So this is a really important issue, and hence the Supreme Court's decision to refer the matter to the European Court, which has already looked at this point in (Case C-5/08) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq I”) , (Case C-403/08) Football Association Premier League Ltd v QC Leisure and Others and (Case C-429/08) Karen Murphy v Media Protection Services Ltd (“Premier League”)  1 CMLR 769; and (Case C-302/10) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq II”), 17 January 2012.
In thinking about the outcome of that referral, I'd like to add a couple of comments, including some personal recollections. I took part in the negotiations of the Copyright Directive - 2001/29/EC. In particular, I recall a meeting between representatives of the large Telcos on the one hand and rights holders on the other some time around 1999 or 2000. The focus was Article 5.1 of the Directive, the one on which the Supreme Court focused in this case. It was like two nations each struggling to understand the other's language. The Telcos were concerned about being sued for copyright infringement because technical, temporary copies of works being carried on their networks were being made in their routers and server caches.
It was these these types of technical, temporary copies without independent economic significance which were the focus of Article 5.1 of the Directive. It carves out of the reproduction right "temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary; or (b) a lawful use."
As I recall, the majority of the discussions around Article 5.1 concerned these kinds of temporary copies made by the Telcos' networks and machines. True, the reference to "lawful use" pointed to other, "off the network" technical, temporary copies such as cached copies in a computer's memory which were incidental to some other "lawful use" e.g. prior to a download. But this was not the central point and the notion of "lawful use" was seen in the context of technical copies which happened in the course of some other licensed activity.
True, the Supreme Court has said that European case law has interpreted "lawful use" more widely. Effectively, the Court said that if someone does not need a licence to view a work on screen, then technical copies made the user's machine are "lawful". The Court said that "..the far broader meaning given by the Court of Justice...to the concept of "lawful use" makes it impossible to confine the scope of the exception to the internal plumbing of the internet. Once it it accepted that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end-users, much of teh argument which the courts below accepted unravels."
Getting the ambit of the exemption in Article 5.1 is of fundamental concern for everyone in the digital value chain. It should also be remembered that the debates around Article 5.1 should be seen in the context of the exemptions from liability for 'mere conduite', 'caching' and 'hosting' in the E-Commerce Directive which was going through the legislative process at the same time.
The issues here are complex and what's important is that we 'look through' the technology to get a uniformly agreed and accepted view of preciselly what "lawful use" means in the world of digital copyright. We must get the balance right. Clearly, no-one seeks to turn internet users into copyright infringers. Equally, it's important that there isn't a legal hole in digital content services.
Have a good week,