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Having thought that we had passed through the days when copyright experts obsessed about the legality of hyper-linking, caching and framing, the Courts of Justice of the European Union have recently been asked to decide on the issue of transience of internet communications. In particular, whether using ‘crawler’ or ‘spider’ technology fell within the temporary copying exemptions to copyright infringement.

CLA v Meltwater represents a long running battle passing through the courts and landing finally at the door of the CJEU. Meltwater News is a subscription service which reviews newspaper websites. It uses spiders to crawl through the text to produce an index of specific words found by the spiders. This data is then sold on to third parties.

The court was asked whether “Article 5 of the Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website, satisfy the condition that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and , if so, whether those copies may be made without the authorisation of the copyright holders”.

The court decided that any transient copies created as a result of browsing a website are necessary for the browsing to take place. Accordingly, it would fall under the exemption in the copyright directive. It said “….the viewing of websites by means of the technological process at issue [i.e. ‘crawling’] represents a normal exploitation of the works which makes it possible for internet users to avail themselves of the communication to the public made by the publisher of the website concerned. Given that the creation of the copies in question forms part of such viewing, it cannot operate to the detriment of such exploitation of the works…”

This judgment is helpful to clients using this type of automated software in their business. We already thought this position was clear, but apparently not to the CLA. Essentially, this type of web crawling falls within the transient copy exemption and is not a copyright infringement.