The Court of Justice of the European Union (CJEU) has found that browsing material online is exempted from copyright infringement by the EU Copyright Directive.

Art. 5(1) of the EU Copyright Directive exempts temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process of transmission or lawful use. Art. 5(5) adds the ‘three-step test’ requirement that the reproduction must be a certain special case which does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the right holder.

In PRCA v NLA, the CJEU ruled that both on-screen and cached copies created during viewing material online are: “temporary”, because the on-screen copies are deleted once the user moves to another page and the cached copies are normally replaced by other content over time; and “integral and essential”, because they are made entirely in the context of the process of browsing. The court also ruled that: on-screen copies are “transient”, because their duration is limited to what is necessary for browsing; and cached copies are “incidental”, because they neither exist independently nor have a purpose independent of the technological process for browsing.

The Court further found that on-screen and cached copies satisfy the three-step test. They are special cases, because they are created only for the purpose of viewing material online; they do not unreasonably prejudice the legitimate interests of rights holders, so long as the material has been put online with the authorisation of the copyright owner; and they do not conflict with a normal exploitation of copyright, because viewing material is within a normal exploitation of material that has been put online with authorisation.