Temporary and Incidental Copying Flashcards
Temporary Copying
Art 5(1) InfoSoc/s28 CDPA: CR is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable: (a) a transmission of the work in a network between third parties by an intermediary; or (b) a lawful use of the work; and which has no independent economic significance. NB: Computer programs and CR databases are excluded.
PRCA v NLA 2013- Lord Sumption: The effect of CJEU authority
(1) The making of copies is a “necessary” part of the process if it enables it to function “correctly and efficiently”: Infopaq 2
(2) Temporary: (i) that the storage and deletion of the copyright material must be the automatic consequence and (ii) that the duration of the copy should be limited to what is necessary for the completion of the relevant technological process: Infopaq 1
(3) Not limited to copies made in order to enable the transmission of material through intermediaries in a network. It also applies to copies made for the sole purpose of enabling other uses, provided that these uses are lawful e.g. internet browsing: Infopaq I and Infopaq II
(4) The use of the material is not unlawful by reason only of the fact that it lacks the authorisation of the copyright owner.
(5) The making of the temporary copy must have no “independent economic significance”. i.e. no value additional to that which is derived from the mere act of digitally transmitting or viewing the material: Premier League, Infopaq II
Incidental Inclusion
Applies to all categories of work but only where included incidentally in an artistic work, sound recording, film or broadcast.
FAPL v Panini- depiction of the logo was an important part and was therefore not incidental. Permission obtained for photos but CR in logos infringed.
