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.
