Copyright Law in the era of internet

Within the EU context, Article 5(1) of the Infosoc Directive¹ introduces a mandatory exception on transient and incidental copying. Recital 33 of the Infosoc Directive² goes on to state that the exception should include acts which enable browsing as well as caching to take place, including those which enable transmission systems to function efficiently. This exception has been implemented in UK via Section 28A of the CDPA³. The justification of this exception emanates from the fact that temporary reproduction is so common in digital technologies, that it should not be widely regulated through the broad reproduction right.

As per Section 28A CDPA, copyright is not infringed by the making of a temporary copy which is:-

1. transient or incidental;
2. integral and essential part of a technological process;
3. the sole purpose of which is to enable:
   1. a transmission of the work in a network between third parties by an intermediary; or
   2. a lawful use of the work;
4. and which has no independent economic significance.

The CJEU has interpreted each of the above elements through a multitude of judgments. The first requirement is that the copy must be transient or incidental. The Infopaq I⁴ case held that a copy is transient only if the duration of the act is limited to what is necessary for the proper completion of the technological process in question, and the copy is automatically deleted once its function of enabling the completion of the process has come to an end. The second requirement is that the act of copying is an integral and essential part of a technological process. The Infopaq II⁵ case clarified this requirement by stating that the temporary reproduction must be necessary, in that the technological process concerned could not function correctly and efficiently without that act. The third requirement i.e., of a lawful use, was expanded upon in the Infopaq II⁶ case, by seeking inspiration from Recital 33 of the Infosoc Directive, which states that – “A use should be considered lawful where it is authorised by the right holder or not restricted by law”. The fourth requirement is that the act of making a temporary copy should have no independent economic significance. The Infopaq II⁷ case clarified that acts of temporary reproduction must not generate an additional economic advantage going beyond that derived from the lawful use of the protected work or its transmission in a network.

Now whether this exception enabling a temporary copy to be protected under copyright law would apply to the situation of internet browsing or not was considered by both the UK courts and the CJEU. The first set of UK judgments were very counter intuitive and held that when clients click on links to relevant stories sent by an electronic news-monitoring service, the making of temporary copies is not an integral and essential part of the technological process of browsing, but the end which the process is designed to achieve.⁸ In the same case, upon appeal, the Supreme Court, influenced by the CJEU decisions of Infopaq II and FAPL took a purposive approach to interpreting Section 28A of the CDPA and held that one needs to interpret the conditions under the said Section as far as possible in a manner consistent with the purpose envisaged under Recital 33 of the Infosoc Directive. Overall, the Supreme Court held that a distinction must be made between viewing the relevant material (i.e., equivalent to temporary copying) and recording that material. Hence, browsing the internet was allowed under the temporary copy exception of Section 28. The CJEU also interpreted Article 5 of the Infosoc Directive to include within its ambit the on-screen copies and the cached copies made by an end-user in the course of viewing a website.⁹ However, in another case, when it came to the CJEU applying Article 5(1) as a defence for an end user who viewed an unauthorized stream, the CJEU did not acknowledge that this provision is an exception to copyright law and did not allow the defence of temporary copy by stating that “the end user would access, for free and deliberately, the protected work and the effect would be to reduce the number of lawful, paid transactions.”¹⁰

Overall, both the UK courts and CJEU have not undertaken a consistent approach to applying the conditions of the temporary copy defence to different fact situations. The conditions-based approach is in itself extremely overlapping between different factors such as temporality, transient nature, etc., and the decisions of the courts have not been able to throw much light on the already confusing test.

The CJEU has through mainly two judgments discussed the issue “whether creating a hyperlink to material that is publicly available on the internet permissible?” According to the CJEU, hyperlinking is an act of communication as it ‘affords users of the site, with the hyperlink, direct access to the works’. ¹¹ In the same case, the CJEU then goes on to hold that if there is linking to material that is generally available on the internet, there would be no communication to the public and hence no copyright infringement, as a new public would not be reached. However, if the hyperlink is linking to a material which is otherwise not freely available to the general public on the internet and the hyperlink is acting as a circumvention to the restrictions on access to the said material, a “new public” is reached through the creation of the hyperlink. Hence, in Svensson, the CJEU holds that in such a situation, there is communication to the public and hence copyright infringement on the part of the link generator.

In my opinion, referring to this act of hyperlinking as communication to the public is stretching the communication right a bit much. Many other commentators have also agreed to my analysis by arguing that if every intervention on the internet that would give access to a work were to be treated as a communication to the public, then the effect would lead to the transformation of the “communication right” into an “access right”, covering any act that provides access to a work, as for example, where a bookstore or newsagent lets the public into its premises, or a library allows access to its collection or reading rooms. This would lead to confusion with other rights such as distribution, lending, and rental rights.¹²

Another twist that the CJEU came up with, w.r.t. hyperlinking, was in case of situations where the right holder did not consent to the initial upload of the work on the internet. In the GS Media ¹³ case, while acknowledging the importance of the internet and free flow of information on the internet, the CJEU came up with a rather complicated standard of determining whether hyperlinking can lead to copyright infringement. When an entity is linking to content that is not freely available elsewhere with the consent of the right holder, and if the linker knew or ought to have known that that the hyperlink he/she posted provides access to a work illegally placed on the internet, then the act of communication to the public has taken place. ¹⁴ On the other hand, even if there is no element of knowledge and the entity is profit making, then there is a rebuttable presumption in favour of the fact that the hyperlinking is communication to the public and such a presumption needs to be rebutted by the entity.

In my opinion, the biggest problem that the internet can face, as a result of the GS Media case, is the toll that the search engines might have to undertake as a result. Although there is no direct ruling on this issue, intuitively one can argue that search engines such as Google are profit making entities. Hence, they will be presumed to have knowledge that they are providing access to illegal material on the internet. If the search engines cannot rebut this presumption of knowledge, their act of providing links will be considered communication to the public and this can turn out to be extremely detrimental to the easy access to information on the internet. Further, the CJEU does not clarify what constitutes “profit”, which could pose a problem for the proper application of the case, considering the different kinds of “not for profit” websites operating on the internet.

Overall, although UK Courts and the CJEU have tried their level best to resolve complicated questions regarding copyright related liability in this internet age, there are multiple issues which remain open – especially the interpretation of the very idea of exceptions by CJEU, when it comes to browsing of the internet, and the baseless connection between communication to the public and hyperlinking, which has created more complications instead of explaining liability around hyperlinking.

¹Directive 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 “Infosoc Directive”)

²Ibid.

³Copyright, Designs and Patents Act 1988 (the “CDPA”)

⁴C-5/08

⁵C-302/10

⁶Ibid.

⁷Ibid.

⁸The Newspaper Licensing Agency v Meltwater Holding [2010] EWHC 3099 (Ch); [2011] EWCA Civ 890

⁹Case C‑360/13, Public Relations Consultants Association v Newspaper Licensing Agency

¹⁰Case C-527/15 Stichting Brein v. Jack Frederik Wullems

¹¹Case C-466/12, Svensson

¹²The European Copyright Society, ‘Opinion on the Reference to the CJEU in Case C-466/12 Svensson’

¹³Case C-160/15

¹⁴Ibid.

Sayesha Bhattacharya is an Advocate enrolled with the Bar Council of Delhi (India), and has worked in the areas of Intellectual Property Law and Commercial Litigation/Arbitration at Cyril Amarchand Mangaldas, one of the most reputed law firms in India.

Currently, she is pursuing the Master of Law (LLM) programme at the University of Cambridge, UK. She is interested in the practical, regulatory, and theoretical aspects of Trade Mark Law, Copyright Law, and Environment Law. Her research interests include the overlap between Intellectual Property Law and Environment Law.

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