A question that has been answered in negative by courts around the world has refused to die. The question is whether an Internet user, by mere viewing of a copyright protected work, commits the copyright infringement. Obviously, this question is asked due to the ignorance of the manner in which technology is used to view online contents.
At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we reiterate that if a person is looking at an online content, through a natural and automatic process, the copies (cache) of such content is normally and temporarily stored on the computer of that person irrespective of the intentions of that person. That storing process cannot be termed as copying of a copyright protected work and there cannot be a copyright violation liability against such person.
This question came before the UK Supreme Court for its analysis and decision. The crux of the issue was the cache and hence it is important to analyse the process in brief here. Generally, cache is essential and to some extent mandatory for the Internet user to view and access the webpages. The cache also helps in fast loading of the contents if the viewer wishes to revisit the previously visited page. If cookies have been used in the previous session that may further facilitate easier and better targeted access to the intended pages.
Once stored on the computer of the user, the cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage. There are browsers that erase the cache the moment such browsers are turned off. Further, some software can also erase the temporary stored files, including the cookies and Internet history, with a simple click of the mouse. We are not going into the details of cache aspect as we are presently analysing the judgement in hand.
The court has analysed the issue from the perspective of a common user and not a tech savvy user. The court observed that in such cases the end-user does not intend to make a copy of the web-page unless he chooses to download it or print it out. His object is to view the material. The copies temporarily retained on the screen or the internet caches are merely the incidental consequence of his use of a computer to do that.
The Court further observed that once it is accepted that part of the purpose of applicable law/article is to authorise the making of copies to enable the end-user to view copyright material on the internet, the various conditions laid down by that article must be construed so far as possible in a manner consistent with that purpose. It must apply to the ordinary technical processes associated with internet browsing. The making of copies in the internet cache and on screen should be an integral and essential part of a technological process.
Unless the users download or print out the material (in which case it is not disputed that they require a licence), the sole economic value which they derive from accessing information on the website is derived from the mere fact of reading it on screen.
The “storage” of the material, i.e. the creation of copies in the cache or on screen, is the automatic result of browsing the internet. It requires no other human intervention than the decision to access the relevant web-page. Its deletion is the equally automatic result of the lapse of time coupled with the continuing use of the browser. The “technological processes in question” are those necessarily associated with web browsing, including the retention of material in the cache. It is retained there for no longer than the ordinary processes associated with internet use continue.
They call for three comments in the present context. The first is that the effect of creating copies in the internet cache or on screen in the course of browsing, must be judged in the light of the normal operation of a computer or its browser. It is not enough that forensic ingenuity can devise a method of extending to some extent the life of copies which are by their nature temporary.
Secondly, the question is whether human intervention is required to delete the material. There is a difference between a discretionary decision to extend the duration of what remains an automatic process, and the storage of a copy of material in the course of the browsing in a manner which will ensure that it is permanent unless and until a discretionary decision is made to delete or destroy it.
Third, if the mere fact that it is in principle possible to close down a computer, alter the browser settings to enlarge the internet cache or leave an image on screen indefinitely were enough to prevent article 5.1 from applying, then it would never apply to internet browsing. This would frustrate the purpose of the legislation.
All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed.
If it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.
The Court further observed that before making any order on this appeal, the court should refer to the Court of Justice the question whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of this judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.