Wednesday 25 July 2012

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. 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.


Andrew Hughes said...

The assertion that browsing has being made illegal in some way by the NLA-Meltwater case is spurious.

The Court of Appeal ruled that clients of Meltwater needed a licence to receive and use Meltwater’s paid-for media monitoring service. This service is created by copying all content from all newspaper sites, in contravention of their terms of use, and delivering very substantial amounts of copyright material to 2,000 corporate clients for a fee. To conflate the entirely reasonable position that this profit-making activity needs the creators’ permission via a licence into the deliberately misleading suggestion that the internet has become a legal minefield, with innocent private users in danger of being marched off to jail is ridiculous. And to propose a solution that gives free reign to commercial exploiters of other people’s content (aka Baker Mackenzie’s client) to revert to helping themselves is pure self-interest dressed up as principle.

NLA licences ensure that commercial businesses built on publishers’ investment pay a fair share to the content creators. They do not impact on the linked economy, only on the paid-for media monitoring businesses who were previously enjoying an unfair advantage on licensed commercial rivals. After years of radio silence, Cutbot has now begun to raise issues that were raised and settled in the extensive consultation period before NLA web licences were launched in 2010 and the legal process which followed, culminating in the Copyright Tribunal decision this spring. Meltwater, PRCA, NLA and the media monitoring industry have welcomed (see: the Copyright Tribunal decision, media monitoring companies and their clients are signing licences and the world has moved on. Browsing continues and the internet has not broken!

You might like to take a look at this very comprehensive analysis from Simon Clark at Berwin Leighton Paisner LLP. (

Andrew Hughes | Commercial Director | Newspaper Licensing Agency

Andy J said...

@ Andrew Hughes.
To say that browsing 'being made illegal in some way by the NLA-Meltwater case is spurious', is somewhat disingenuous.
Proudman J found at [109] that browsing was not covered by the s 28A temporary caching provision, because a copy of the website appears on the user's screen as a result of his/her deliberate action, not any automatic technological process of transmission. The CA (at [35]) upheld this finding as follows:
"As is clear from a consideration of recital 33 as a whole, the reference to "browsing" is "to the extent that they meet these conditions". 'They' refers to the acts of reproduction. The acts of reproduction are those occasioned by the voluntary human process of accessing that webpage. Accordingly, they fail to satisfy any of the conditions to which recital 33 refers. S.28A does not provide even a limited defence to the claims of infringement to which the business of Meltwater is likely to give rise."
So in other words s 28A does not provide a defence in the case of browsing. I agree that that does not conversely mean that every act of browsing is necessarily infringing, but as was made clear in the Commons Public Committee hearing by Fiona O'Donnell and others, the situation is sufficiently confused that Parliament should act to give clarity to the law.

Unknown said...

This service is created by copying all content from all newspaper sites, in contravention of their terms of use, and delivering very substantial amounts of copyright material to 2,000 corporate clients for a fee.

Media Monitoring