Out-Law.com recently reported that James Mackenzie, commercial director of the media monitoring agency Cutbot, publicly said that businesses and internet users could both suffer if the government waits for the courts to interpret whether browsing and linking are lawful acts. He said that "If Parliament fails to act, ministers risk seeing the innocent browsing of the web criminalised and legitimate UK businesses being stifled."
The debate stems from the NLA v Meltwater litigation which has seen the High Court and the Court of Appeal consider whether headlines and extracts from articles can be protected by copyright. Both courts found that they can, however Meltwater and the Public Relations Consultants Association have referred the question of whether temporary copies of the headlines or extracts, made on users' computers (on their screens or their hard drives) when browsing the internet constitute temporary copies for the purpose of s.28A CDPA or Art. 5 InfoSoc Directive.
In the meantime the NLA is enforcing licences on both media monitoring organisations and their users. The licence fees have been greatly reduced by the Copyright Tribunal (as reported here), but the licences remain unpopular, as evidenced by Cutbot's blogpost "we object to the newspaper licensing agency's terms", which you can read here.
So what's next? Will the government intervene?The issue of whether browsing and linking should explicitly be made legal was recently considered by the House of Commons in a public committee meeting on the Enterprise and Regulatory Reform Bill. A proposed new section was debated:
"30A Sharing and viewing on the internet
Where work is made available to the public at a particular web address with the permission of the owner of the copyright in that work, copyright shall not be infringed by -
(a) any circulation of that web address, or of its title, or of another web address that redirects to that web address;
(b) the downloading of any data required to display that work at that address, and any subsequent processing of that data, including processing for display, provided that it does not result in any publication elsewhere of the work or an adaptation of the work.".
Labour MP Fiona O'Donnell said that:
"It is evident that the law has not caught up with new media and the worldwide web, and the Government must respond."
She went on to quote Professor Lionel Bently, of Cambridge University who has said that
"There is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal."
Business Minister Norman Lamb has previously said that the copyright licensing system is behind the times, and that it needs to be modernised to become fit for the 21st century. He does not however support O'Donnell's argument, saying that links have been dealt with in the Meltwater case and that it is necessary to await the outcome of the case.
The debate continued, with MPs discussing amongst other things hypothetical extracts from the novel "50 Shades of Grey", however the outcome was 11:6 against the amendment.
Lamb said that:
"Ultimately, the matter is for the courts to determine. As the law is evolving and practice is evolving, as we use the internet more and more, to a degree, one has to wait for judicial decisions on the basis of European law to determine whether any particular act is lawful. Ultimately, they are decisions for the courts".
What do you think? Given that the Meltwater case will not be heard by the Supreme Court until February 2013, should the government intervene or can we afford to wait for the court's decision?
Disclaimer: Baker & McKenzie, and this blogger, represent Meltwater and the Public Relations Consultants Association.