Whenever we view content on the Internet, our web browsers (Internet Explorer or Firefox, for most folks) make temporary copies of that content on our computers.  Amongst the rights reserved by copyright holders is the right to prevent others from making copies.  So do those copies constitute copyright infringement?  On Thursday, the European Court of Justice ruled that such copies do NOT constitute an infringement.

An agency that licenses newspaper content (the NLA) sued the Melwater group, arguing that Melwater’s online “flash news” service that linked to newspaper articles required a license from NLA.   In Europe, there are statutes that say a copy is not infringing if (paraphrasing) it is temporary, if it is an essential part of a transmission through a network, and if the copy has “no independent economic significance.”  The Court ruled that the copies made in the course of viewing web content (temporary copies that appear on the computer screen, and are made in the computer’s temporary memory) are temporary, and are reasonably required in order to view web content.

But don’t temporary web copies have value?  So how can they have “no independent economic significance?”  The court here says this language is intended to ensure that the temporary copies “do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holders.”  Here, the court observes that the content would not be searchable in the first place unless the copyright owner allowed the content to be searchable; to quote:

In this connection, it must be pointed out that the works are made available to internet users by the publishers of the websites, those publishers being required, under Article 3(1) of Directive 2001/29, to obtain authorisation from the copyright holders concerned, since that making available constitutes a communication to the public within the meaning of that article.

On that basis, the court concluded that the newspapers’ rights have been protected.  Given that, and given that web browsing is within the normal scope of uses a newspaper would anticipate in granting authorization to website publishers, the court concluded these copies fell under the statute’s exceptions that allow making temporary copies without a license.

What does this mean?

We’ve had similar outcomes in US courts; this is the first affirmation in Europe of a similar outcome, albeit under different legal principles.  So, when licensing content for web posting, content owners should anticipate that in both Europe and the US, they will not be able to prevent users from searching that content.  In a way, you could argue that this is simply an example of the law catching up to the reality of web content.  But it is an important affirmation nonetheless.  At the same time, the court strikes a balance here….web copies would not be authorized if the original content provider had not posted the work online or granted someone else a license to do so.  And the decision only applies to temporary copies.

So…..downloads are not affected. Content that was put on the web without authorization is not affected.