Is browsing unlicensed copyright material on a website copyright infringement?

Article 2(a) of the Copyright Directive requires member states to provide authors with the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction of their works by any means and in any form, in whole or in part. There is an exception in Article 5(1) of the directive. Article 5(1) provides an exemption for temporary acts of reproduction that are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a transmission in a network between third parties by an intermediary or (b) a lawful use of a work or other subject matter to be made and that have no independent economic significance.

Meltwater provides a media monitoring service, by which its customers receive regular reports highlighting newspaper articles that correlate to user-specified search terms. The reports, named Meltwater News, comprise headlines that contain links to the respective articles; the opening words of the articles; and a brief extract showing the context in which the search terms appear.

The Newspaper Licensing Agency (NLA) successfully applied to the High Court for a ruling that the recipients of the reports were infringing copyright in the newspaper articles from which the abstracts were taken. The Court of Appeal then upheld the decision, finding that copyright can subsist in newspaper headlines, as they are capable of being independent literary works. It ruled that even a short newspaper extract may amount to a substantial part of the article and thus be capable of constituting copyright infringement…

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