TRP: Why is there an exception to copying?
JB: The rationale behind the exception is that it allows for innovation as technology should not be stifled by incidental copying during a technological process.
The exception was not primarily drafted to prevent end user liability but was to enhance the digital age and technological innovation because there was a concern that rigid copyright laws would hinder innovation in particular if incidental temporary copying occurred in order to transmit a copyright work.
TRP: What is the importance of the ruling?
Once again the workings of the internet were subject to scrutiny and the CJEU found that the exception to copying applied when a user was viewing copyright works onscreen.
In essence the CJEU was weighing up the rights of copyright holders with the ability of the internet to continue to function properly based on current technologies. The CJEU recognised that if the copying exception did not apply to on screen browsing, then that could interfere with the workings of internet technologies as well as effectively finding that simply 'viewing' was an infringing act.
The fact that a user elected to go to a website did not confer liability on them for viewing the work on screen.
The decision has important implications that individual internet users will not be found liable for their on screen browsing, even if they intentionally seek out to view material that is pirated.
The ruling to some degree ensures the current process for viewing webpages can continue in its current form because if the exception did not apply to viewing webpages, to avoid millions of users being liable, the solution would have been to evolve the technological process of browsing so that copies were no longer created in order for browsing to take place.
For now at least new technological processes for viewing webpages can evolve organically rather than as a consequence of the law interfering.
TRP: Could such a ruling therefore open the gates for abuse> For example, illegally downloaded videos being treated as temporary?
JB: There is the potential for abuse and that is why the result will be frustrating for copyright holders. The ruling means the exception applies to on screen viewing of copyright works whether the user unintentionally or intentionally wished to view unauthorised copyright works.
It should be noted that the decision only applies if the reproduction fits all the criteria of the exception, so in the case of a downloaded pirated movie, because the copy is stored for later use, it is not temporary or an integral part of the technological process to view the work it will continue to be an infringement.
Though streaming was not specifically considered, the implication of the judgment is that users who intentionally watch onscreen pirated movies will probably not be infringing if they only view the movie and do not download it.
Rights holders would have hoped the CJEU would construe narrowly the exception so they could pursue those individuals who intentionally viewed infringing material. Now their options are limited to pursue those who upload or make available the infringing content.
The CJEU recognised the exception could only apply if it did not conflict with the rights of rights holders and said that rights holders had the ability to rely on other rights to stop copyright works being available on the internet so their rights were not unreasonably prejudiced.
The difficult part for rights holders is that stopping the source of pirated material is an onerous task that is analogous to playing 'whack a mole' as they often reappear after being taken down.
TRP: Could emerging technologies like Google Glass and the internet of things potentially change the judgement?
JB: Current copyright legislation was revised during the 1990s as legislators recognised that the law needed updating to respond to new exploitation of copyright works in the digital environment and to ensure that the legal framework was flexible to foster the development of the information society.
No doubt future technologies will force a further reconsideration of the exception to copying in the future and could potentially require further guidance from the CJEU.
Most likely it will depend on how critical the technology at issue is to commerce and though the CJEU did not express it in its decision, it was material that if copying in order to view websites fell outside the exception to copying there would have been wide scale implications for commerce as well as the normal functioning of the Internet.
