The highest European Court today confirmed that the internet can carry on working just like it has for 20 years. In doing so, it was batting away a strange request for "clarification" on copyright from the UK's Supreme Court.
For the internet to function, it was established very early on that certain devices - such as routers, computer displays, browser caches - would need a narrow exemption from copyright law if the whole thing was to work. In other words, you didn't need permission to make a temporary copy of a work if it was part of a technological process essential to publishing the work
Case law was quickly laid down, and the European Parliament made these temporary and "integral" copies safe in 2001 (Article 5 of Directive 2001/29/EC).
The issue hasn't troubled the lawyers since.
Musing on the Newspaper Licensing Authority vs Public Relations Consultants Association Limited* case before him last year, Sumption was suddenly seized with panic. What if routers and displays weren't temporarily exempt from copyright, he wondered. What if the whole thing suddenly just stopped working?
That had a "transnational dimension", Sumption shuddered, and potentially affected "many millions of people".
Well, yes, it might. If it wasn't for all that other pesky "legal stuff" over the past 20 years.
(It also seems that the Justice wasn't aware that the UK has a Copyright Tribunal that sets a statutory rate when there's a dispute. But that's by the by.) So as part of the Supreme Court's ruling [summary - full judgment], Sumption recommended that the European Court of Justice needed to have a look at temporary copies.
The CJEU has now done so, and reading their decision, it is not hard to imagine some impatience with the learned Lord.
They affirm that a copy of a copyright work made to display on a screen or reside temporarily in a hard disk cache doesn't need the copyright holder's permission - so long as that copy is temporary, and an essential part of the technological process of getting that original work to you.
In a separate case, the CJEU also confirmed that libraries can make copies of ebooks to display on e-readers within the library (judgment available in PDF format here (PDF)). Libraries already have a range of exceptions for displaying and archiving copyright work, but the CJEU said this new ruling doesn't automatically cover copying to a USB stick or printing - which may or may not be covered by whatever law the member state or specific library has in place.
Judges said making a copy for an e-reader was much like making a photocopy (which is compensated) and since the e-reader was in the library, it didn't represent a commercial threat to the publisher. ®
* Newscraper Meltwater provides members of the association "with automated software programmes to create a daily index of words appearing on newspaper websites", which was the nub of the dispute.