NLA v Meltwater: temporary copies issue referred to the CJEU

Readers will remember that both the High Court and the Court of Appeal held, in NLA v Meltwater, that users of Meltwater's news aggregation service need a licence from the NLA in order to receive and read Meltwater news snippets. The specific question of whether the copies made on users' computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive was appealed to the Supreme Court.

There has been some heated discussion on this blog as to whether the case would or would not break the internet, and several academics locked horns to debate whether the case meant the end of browsing. This is a topic on which everyone has an opinion, because the question of whether it is legal to read material online is an important one. So important that the Supreme Court has today held that it will refer the question of temporary copies to the CJEU.

The Supreme Court's decision contains a thorough analysis of the temporary copies exception and previous CJEU case law, and sets out the conclusions that it reaches on the effect of the Information Society Directive as the CJEU has interpreted and applied it to date.

The decision notes that if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing.

The Supreme Court recognises that "the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union."

On that basis the Supreme Court will refer to the CJEU the question whether the requirements of article 5.1 of the Information Society Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of the Supreme Court judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.

The specific questions to be referred are yet to be decided.

 

Disclaimer: Baker & McKenzie acts for Meltwater and PRCA in this case.

Browsing and linking: should the government get involved?

Is it illegal to browse the internet? As counterintuitive as it may seem the answer is that yes, sometimes it is, even if you are browsing content which is entirely legal. Unsurprisingly this is a hot topic, currently being considered both by the government and by the courts, as well as by consumers.

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.