Wednesday 19 September 2012

Why the Meltwater case won't break the internet

The following piece is a guest post by Simon Clark (Head of Intellectual Property, Berwin Leighton Paisner LLP) in which he outlines his view on the implications (or lack of them) for internet browsing of the much-discussed litigation before the courts of England and Wales in NLA v Meltwater.  Whether you agree with Simon or whether your take on this litigation is quite different, do let us know.
Why the Meltwater case will not break the internet 
You may have read some recent discussion on this blog regarding the effects of the Newspaper Licensing Agency’s litigation with Meltwater and the PRCA on “linking” and “browsing”. 
One of the often repeated claims is that the Court of Appeal’s decision has been to make all browsing on the internet illegal. In this post I’ll explain why this is a misunderstanding – both of the nature of the case and the safeguards in place that would make such a result impossible.
The background to various proceedings between the NLA and Meltwater and the PRCA are given in more detail here.  But, in brief, the litigation had little to do with either “linking” or “browsing” when both the High Court and the Court of Appeal made their rulings in favour of the NLA. 
In fact, the litigation only relates to the extent to which Meltwater’s customers and other end users of paid-for online press monitoring services require a copyright licence. The Courts found in favour of the NLA, but the PRCA appealed a single issue to the Supreme Court which they say has a direct effect on the legality of browsing. This is known as the “temporary copying” exception. 
The reason it is called an exception is because, under current copyright law, any original article, plus some extracts of an article and some headlines appearing on newspaper websites will be protected by copyright. However, since temporary copies as well as permanent copies can infringe copyright, calling the exception in issue the “temporary copying” exception is somewhat misleading. In fact, the exception only applies to certain types of temporary copies and the European Courts have said that it must be interpreted narrowly.     
Most acts of browsing are either authorised or fall within an existing exception 
If internet users access a newspaper website on their computers to read an article, they make a copy of the article in the memory of their computers, and a copy appears on their computer screens. Does this mean that every internet user that accesses an article on a website infringes copyright? Of course not. There will be no infringement of copyright if the otherwise infringing act falls within one of the exceptions, or if the owner has authorised the act. 
It is not an infringement of copyright if the acts are undertaken for “the purposes of research for a non-commercial purpose” or for “the purposes of private study”. Many internet users’ browsing activities will fall within these exceptions. 
Most websites are designed to be accessed by members of the public. The operators of those websites add content to their website with the very intention of wanting people to read it. They have given an implied, free-of-charge copyright licence to the reader to make a copy of their content on the reader’s computer screen so that they can view it.  As such, most acts of browsing will be entirely legal and will not infringe copyright. 
So what about for-profit media monitoring services like Meltwater? 
Newspaper publishers are different to many other websites as they have only given an express licence (made clear in their terms and conditions) to members of the public to reproduce the articles on their computer screens so that they can read them for non-commercial purposes.
The newspapers have made it very clear (including expressly in their terms and conditions, but also through the litigation) that no such licence is granted to a client of a paid-for media monitoring agency such as Meltwater which is using the newspapers’ content for commercial purposes. Despite this, Meltwater and the PRCA argue that the copies of the articles made on the end user’s computer screen and in their computer’s memory fall within the “temporary copying” exception.

Accordingly, in February 2013 the Supreme Court will have to decide whether the Court of Appeal was right to conclude that the copy of the newspaper article which appears on the user’s screen does not fall within the temporary copying exception.  The screen copy is the result of users paying for a media monitoring service such as Meltwater’s, and acts as a substitute for the hard copy article which users would otherwise have had to have paid for.  The PRCA argues that it falls within the exception, because the screen copy is temporary and appears as part of the same technical process involved with any act of browsing.  The NLA’s position is that it does not, because it is far removed from the non-profit making temporary copies that the exception was intended to cover.  It is the final copy produced at the end of the technological process that the end user has paid to receive, rather than an incidental copy.  
So in summary:
1.     Copyright in an article does not simply disappear as soon the article is put on the internet;
2.     It is perfectly permissible for a copyright owner to grant a copyright licence to allow some types of use (e.g. non-commercial) but not others (e.g. commercial);
3.     Most websites grant an express or implied copyright licence which permits acts of browsing;
4.     Browsing a website for private study and non-commercial research is already expressly permitted by existing copyright law;
5.     Linking to articles for the purposes of criticism or review or for reporting current events may well fall within one of the other specific exceptions;
This is a summary of a longer article which you can access here.


Thomas Dillon said...

A reminder that IP remains a field in which the practitioners know as much, or more, than the academics.

Anonymous said...

So copyright infringement depends on how a reader learns about the existence of the story? Thus a reader coming to a story as the result of a link from a general search engine (all commercial entities) also infringes?

The conclusion from this can only be that the only licensed readers are those who already know about the story - and thus the conclusion that newspapers don't really want readers.

Andy J said...

Jeremy, I think it would have been helpful in introducing this post to have mentioned that Simon Clark was part of the legal team behind the Newspaper Licensing Agency during their litigation with Meltwter etc. The clue lies in the summary of the case so far, to which he refers, being found on the NLA website. Plus of course the fuller article also referred to in the post does make this fact clear to those diligent enough to follow the leads.

Anonymous said...

I agree with Andy J that it ought to be made clear that this article was written by someone working for the NLA's legal team, which explains its partial account of the situation.

Jeremy said...

Sorry, I wrongly assumed that everyone would remember the connection between Simon and the NLA, which I mentioned in an earlier post here:

Anonymous said...

I wonder whether Thomas Dillon think that the practitioners for NLA know more, or less, than "the academics"