With decision dated 5th of June 2014, the European Court of Justice, upon request by the Supreme Court of the United Kingdom for a preliminary ruling (case n. C360/13), clarified the disputed issue of the coordination between the holder’s exclusive right of reproduction and the exemption to such general principal in relation to “temporary reproductions” of copyrighted material. The Court, in particular, was requested to determine whether the authorization of copyright holders, as provided under article 2 of the Copyright Directive (Directive 2001/29/EC), is necessary or not for copies made on the user’s computer screen (“on-screen copies”) and in the internet cache of that computer’s hard disk (“cached copies”) when visiting a website. Based on its reasoning, the Court finally stated that on-screen copies and cached copies fall within the range of the exemptions to the general principal of the copyright holder’s exclusive right of reproduction and authorization, insofar as they fulfil the requirements provided to that extent by article 5 of the same Directive.

While arguing that the requirements thereby indicated were met in the case at hand, the Court held that on-screen copies and cached copies shall necessarily be considered not only temporary, since they are, respectively, eliminated once the user moves away from the viewed website or replaced after a certain time based on the capacity of the cache memory, but also incidental and transient. In fact, such copies do not exist independently from the technological process of which they form part and are solely intended to guarantee its proper functioning, in consideration of the fact that the creation of such copies reflect only the intention of the user to view the web site and therefore on-screen copies and cached copies are merely an incidental consequence of internet browsing, but still and essential part of this process.

The Court also highlighted that the creation of the above-mentioned copies does not threaten to unreasonably prejudice the legitimate interests of the copyright holders, as requested by article 5 section 5 of the Copyright Directive. In fact, while the right holder, pursuant to article 3 of the Directive, must authorize the communication to the public of copyrighted material, no authorization shall be necessary in relation to internet users who intend to access such material, which has already been made available to the public with the due authorization. In light of the above assessments, the Court determined that on-screen copies and cached copies do not infringe the copyright on protected material since they benefit of the exemption granted by article 5 of the Copyright Directive and can therefore, be created without the need for a prior authorization by the right holder.

By Barbara Sartori & Luca Tramontin