The application arose in the context of Article 5(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. Article 5(1) provides a temporary copying exemption to copyright infringement, provided the relevant criteria are met. Article 5(1) was transposed into English law by section 28A of the Copyright, Designs and Patents Act 1988.
The applicants, the PRCA, were an association of public relations professionals who used the media monitoring service offered by the Meltwater group of companies (M), which made available to them, online, monitoring reports of press reports published on the internet. The NLA took the view that M and its customers were required to obtain authorisation from the copyright holders for, respectively, providing and receiving the media monitoring service.
M agreed to enter into a web database licence. The PRCA, however, maintained that the online receipt of monitoring reports by M’s customers did not require a license.
The High Court of Justice and the Court of Appeal of England & Wales held that the members of the PRCA were required to obtain a license or consent from the NLA in order to receive M’s service. The PRCA brought an appeal against that decision before the Supreme Court. Lord Sumption concluded that on-screen copies and cached copies satisfied the fourth and fifth conditions laid out in Article 5(1) of Directive 2001/29 but queried as to whether the caching of material for a period of time after a browsing session had terminated was temporary and transient or incidental to the act of browsing as required by Article 5(1). The case was consequently referred to the CJEU for a preliminary ruling.