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First, the on-screen copies and the cached copies were created and deleted by the technological process used for viewing websites, with the result that they were made entirely in the context of that process criterion 1. Second, browsing on the internet could not function correctly and efficiently without the acts of reproduction concerned taking place criterion 2. The internet would be unable to cope with current volumes of data transmitted online without the creation of cached copies.
Concerning on-screen copies, it was not disputed that, at present, the technology for the viewing of websites on computers required such copies to be made if it was to function correctly and efficiently. Given that the creation of the copies in question formed part of such viewing, it could not operate to the detriment of such an exploitation of the works.
The CJEU did not address whether the copying exemption under Article 5 1 applies where internet users download, print or store the material being browsed.
The conditions that a reproduction be temporary and transient or incidental, however, suggest that it does not. Judgment of the CJEU. Read more. In those cases, the end-user would not require a licence or consent from the publisher. Lord Sumption characterised the question on appeal as being whether those copies are nonetheless infringing copies unless licensed by the rights owner. The Supreme Court then looked to see whether the art 5 1 conditions were met, and found that there could be no question that the copying was:.
It was argued by the Respondents that one of the consequences of allowing the appeal was that copyright owners would be exposed to large-scale piracy which would be difficult to detect or prevent. The Court was not persuaded by this for a number of reasons which boil down to:. However, the Court did note that this decision may result in the MMO having to paying a higher licence fee for content because such licences currently are granted on the basis that end-users such as the PR consultants also need a licence.
However, downloading, printing out or forwarding copyright content for a commercial advantage will still infringe copyright. When the case returns to the High Court later this year for the decision of the CJEU to be applied to the facts of the case, the application of art 5 1 of the Infosoc Directive will be reconsidered in light of the CJEU decision.
As such, the High Court may use that opportunity to provide some further commentary on the implications for end-users when viewing content online. As the Supreme Court points out, Meltwater effectively treats viewing electronic copies of copyright-protected material in the same way as viewing physical copies.
This does, in theory, limit the remedies available to rights holders in taking action against piracy.
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