Copyright

ECJ: creating cached copies does not infringe copyright law

When internet users browse the internet, cached copies of the pages they view are created. In a landmark judgment, the ECJ has ruled that such cached copies do not infringe copyright law. The judgment will have ramifications for the debate surrounding the legality of streaming.

ECJ: creating cached copies does not infringe copyright law © Africa Studio - Fotolia.com

ECJ: creating cached copies does not infringe copyright law © Africa Studio – Fotolia.com

Cached copies

The ECJ has handed down a judgment in which it declares that internet users who create cached copies of websites when browsing the internet do not infringe copyright law (case ref. C-360/13).

The judgment is bound to have ramifications for the debate in Germany surrounding the legality of streaming

Media law expert, Christian Solmecke, explains, “This judgment is surely also explicable to circumstances concerning streaming, as when files are streamed, internet users create only a transient copy of the file in the buffer. Under § 44a Copyright Act (Urheberrechtsgesetz, UrGH) such temporary and fleeting copies are permitted. This judgment removes all doubt that the so-called RedTube warning letters were illegal.”

Background facts

The case came about following a dispute between the British Newspaper Licensing Agency (NLA) and the Public Relations Consultants Association (PRCA). The NLA sought to prevent members of the PRCA from accessing free content offered by the media monitoring service, Meltwater.

The Agency argued that there was an obligation to obtain authorisation from copyright holders to view the online content in question, as copies were being made on-screen and in internet users’ cache.

The ECJ ruled that internet users are not required to obtain the consent of copyright holders before creating such on-screen or cached copies, and that consequently no copyright infringement is committed.

“There is no reason why this judgment should not also be applicable to the streaming of music or films,” Christian Solmecke states, “When streaming videos, only parts of the files are stored in the random access memory. The copies are transient and at no point are videos saved in their entirety on the computer’s hard drive.

“In my view, this principle also applies to cases when the source of content is illegal. But this question remains disputed amongst legal professionals, as the ECJ’s judgment concerns a legal source.”

Not applicable to Cuevana.tv and Popcorn Time

Users of alleged streaming portals such as Cuevana.tv and Popcorn Time should not celebrate too early. Behind these so-called streaming websites lurk download functions which automatically make streamed files available to others automatically and without prior warning via BitTorrent. The result is that the files are shared in the same way as in classic file sharing cases. The distribution of copyright-protected files is a clear violation of copyright law.

“The fact that many users do not notice the way in which these websites work is irrelevant. Under German copyright law, perpetrators of copyright infringements are held strictly liable.”

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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