Every digital transmission makes copies. Routers cache, browsers buffer, and playing a file loads it into memory. Section 9 of the Copyright and Neighbouring Rights Act 2000 keeps those copies out of the reproduction right.
Section 9 — the exception
(a) the reproduction is made in the process of a digital transmission of the work, or an act of making a digitally stored work perceptible; and
(b) it is caused by a person or entity that, by way of authorization by the owner of copyright or by operation of law, is entitled to make that transmission or making perceptible; and
(c) it is an accessory to a transmission or making perceptible during the normal operation of the equipment used, and entails the automatic deletion of the copy without enabling the retrieval of the work for any other purpose than those in paragraphs (a) and (b).
The three are cumulative. Failing any one of them takes the copy outside section 9 and back into section 6(1)(a), where it needs authorisation or another exception.
Condition (a) — the two permitted contexts
Digital transmission of the work covers the copies made along the route — in network equipment, proxy caches and intermediate servers — as a file passes from a server to a user.
An act of making a digitally stored work perceptible covers the copies made at the point of use: loading a document into RAM to display it, buffering a video while it plays, decoding an audio stream.
Without section 9, every one of these would be a reproduction. The definition of reproduction in section 2 is broad, and nothing in it excludes copies that exist for a fraction of a second.
Condition (b) — the underlying act must be lawful
The copy must be caused by a person entitled to make that transmission or making perceptible — either by authorization of the owner of copyright, or by operation of law.
So section 9 protects the incidental copies that accompany a lawful transmission or playback. It does not legitimise the temporary copies made while streaming an unauthorised copy of a film, because the person causing them is not entitled to make that transmission.
“By operation of law” picks up the other free uses. A transmission permitted under section 13, or playback of a copy lawfully made under section 8, is an entitlement by law, and the incidental copies are covered.
Condition (c) — accessory, automatic, and not retrievable
Accessory to the transmission or making perceptible — the copy exists to serve the process, not for its own sake.
During the normal operation of the equipment used — the copy is a by-product of how the technology ordinarily works, not something deliberately arranged.
Automatic deletion without enabling retrieval of the work for any other purpose — the copy must go by itself, and must not leave the work available for anything else.
| Copy | Within section 9? | Why |
|---|---|---|
| Router and proxy caching during lawful delivery | Yes | Accessory, automatic, transient — and the transmission is authorised |
| Browser cache while viewing an authorised page | Yes | Making perceptible; deleted in normal operation |
| Buffering while streaming a licensed film | Yes | Accessory to lawful playback |
| Buffering while streaming an unauthorised film | No | Condition (b) fails — no entitlement to make the transmission |
| “Save offline” or download-for-later feature | No | The copy is retained and retrievable — condition (c) fails |
| A server-side archive of everything transmitted | No | Not accessory, not automatically deleted |
| Screen recording of a stream | No | A deliberate permanent copy — consider s 8, subject to s 8(2)(e) |
Who section 9 actually protects
The direct beneficiaries are internet service providers, network operators, hosting and caching services and anyone else whose equipment makes copies as data passes through. Without section 9 each of them would be a primary infringer for every file carried.
It also protects users, whose devices copy in order to display, and broadcasters and platforms operating lawful services, whose delivery infrastructure makes copies at every stage.
Note that section 9 is not a general safe harbour for intermediaries. It addresses only the reproduction right. An intermediary that itself communicates a work to the public under section 6(1)(j), or authorises infringement — both limbs of section 6(1) are “to carry out or to authorize” — is outside section 9 altogether.
Digital delivery is also governed by section 29, which makes it unlawful to manufacture or import devices designed to circumvent copy protection or to enable reception of encrypted programs by those not entitled, and to remove or alter electronic rights management information without authority.
A system that strips rights management information from files as it transmits them is not saved by section 9, because section 29(2) assimilates that conduct to infringement for the purposes of sections 26, 27 and 28.
Finally, the neighbouring rights are covered too. Under section 25(d), the exclusive rights of performers, producers and broadcasting organisations do not apply where, under Part II, a work may be used without the author’s authorisation — which includes a section 9 temporary reproduction.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 6, 8, 9, 13, 25–29
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.