The Internet has fundamentally altered the manner in which copyrighted
works are created, distributed and accessed. The on-demand access to and transmission of works online has introduced novel methods of exploitation of copyright works not hitherto envisaged by the law. Copyright laws world wide are evolving to address the legal issues arising from this rapid technological development. For example, the European Union’s Information Society Directive (InfoSoc) 2001 was enacted within this context, to offer a high level of copyright protection to authors in the EU.

Unfortunately, Kenya’s Copyright regime has not yet caught up with these rapid technological developments and their attendant legal issues. For example, the Copyright Act does not provide an exception from copyright infringement in the case of  reproduction that is temporary, transient or part of a technological process, as is seen in  use of cookies & cache storage, both which are vital to the Internet’s operation.  

Hyperlinks, which are online network components that redirect users to another website  when they click, tap or hover on it, came under scrutiny in the European Union in the case; Public Relations Consultants Association Limited (PRCA) v Newspaper Licensing Agency (NLA) C 360/13 (2013).

The PRCA, an association of public relations professionals, used a media monitoring service provided by Meltwater Limited to monitor online press reports concerning or relating to their clients. The NLA, representing the interests of newspapers i.e. the copyright holders of the published reports, took the view that the PRCA was required to obtain authorisation from the copyright holders for receiving the online media monitoring service offered by Meltwater. After both the High Court and Court of Appeal of England & Wales ruled in favour of the NLA, the PRCA instituted an appeal in the United Kingdom’s Supreme Court, which referred the case to the Court of Justice of the European Union (CJEU).

The main issue for consideration before the CJEU was whether the copies of the copyrighted material on the user’s computer screen and the copies in the internet ‘cache’ fell under the conditions of Article 5(1) of the InfoSoc Directive. This Article provides that an act of reproduction is exempted from the reproduction right provided for in Article 2 of the InfoSoc Directive, on condition that:

– it is temporary;

– it is transient or incidental;

– it is an integral and essential part of a technological process.

Central to the determination of this issue was not merely if onscreen displays and Internet cache copies are transient or temporary, but if the end user (e.g. PRCA) infringes on copyright by making of temporary copies that allows them to view the copyrighted material.

With respect to the first criterion of Article 5(1) of the InfoSoc Directive, the Court held that onscreen and cached copies of copyrighted works were temporary as the former were automatically deleted when the user exited from the website that they were viewing and the latter were often automatically replaced by other content depending on the cache’s capacity and the extent of the users internet use. It also found that the second criterion applied as onscreen and cached copies of copyrighted works were transient as the former is automatically deleted by the computer when the user exits the website and thus terminates the technological process used to view that site, and the latter were incidental as internet users could not create cached copies independently of their visit to a particular website or beyond the technological process used to view the site.

The third criterion of Article 5(1) however has direct implications on the functionality of the Internet and the court’s decision in this regard is particularly important. The Court held that on-screen and cached copies are created and deleted solely as a result of the technological process used to access websites. The reproduction as such is as such crucial in enabling users to access websites and subsequently use the Internet as a whole. Furthermore, the Court recognized the fact that the Internet would be unable to function without the creation of cached copies due to the huge volume of data transmitted online. As such, the reproduction is an integral part of the technological process as stipulated by Article 5(1) and it would be as such unjust to require the copyright holder’s authorization when browsing and viewing articles online.

The Court in PRCA v NLA (2013) also noted that the mere viewing or reading of an article in its physical form had hitherto never been an infringement in either English or EU Law. It would therefore not make sense to prohibit the mere viewing of articles online as online content is more often than not copyrighted and Internet users would become infringers if they required licenses to view content which they would inadvertently come across online. Copyright law should therefore not be used as a tool to impede Internet users’ right to browse content online freely.

Ultimately, on screen displays are transient and incidental and are an integral part of the process of browsing the Internet. Had NLA’s argument for the requirement of a license so that they could charge browsers to read content online prevailed, there would have been far reaching negative consequences as to the accessibility to the Internet by EU citizens.

While the legality of linking ‘free’ copyrighted material online, has not yet been explored in Kenyan courts, it is likely that  the courts shall recognise that transient and incidental ‘copying’ that occurs in the operation of the Internet does not infringe on copyright holders’ exclusive reproduction right under section 35 of the Copyright Act (cap 130).  

Copyright law should allow development and operation of new technologies while striking fair balance between copyright holders’ and the technologies’ users’ rights. Kenyan courts’ also have a duty to strike this balance. PRCA v NLA (2013) would in such cases be instrumental not only in its central finding but also in its compelling illustration of the fact that the operation of copyright online is inextricably tied to the accessibility of the Internet. This case also underscores the need for a review of the Copyright Act (Cap 130), in response to the unique challenges wrought by the operation of copyright in the digital age.