CJEU decides that Web browsing DOES fall within Article 5(1)

In the case of  Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others,  case C‑360/13,The Court of Justice of the European Union has held that browsing and viewing articles online does not require authorisation from the copyright holder, with PRCA director general Francis Ingham saying: "We are utterly delighted that the CJEU has accepted all of our arguments against the NLA". PRCA had lost in the Hiugh Court and the Court of Appeal and the case was referred to the CJEU by the UK's Supreme Court where Lord Sumption summarised the case thus:

The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and also in the internet “cache” on the hard disk. The screen copy is self-evidently an essential part of the technology involved, without which the web-page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web-page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage [...] The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner." 

At the heart of the case was whether such copies fall within the meaning of Article 5(1) of The InfoSoc Directive 2001/29/EC (and and its corresponding provision in Section 28A of the UK Copyright, Designs and Patents Act 1988). The test is actually five steps - the referring court had already determined that the on-screen copies and cached copies satisfy the fourth and fifth conditions set out in Article 5(1), so the CJEU had just to consider the first three conditions.

- it is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
- it has no independent economic significance.

The court decided that yes indeed such copies WERE (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process.  For the copies at issue in the main proceedings to be used without authorisation of the copyright owner as an exception,  the use also had to satisfy the conditions laid down in Article 5(5) and again the Court found that the test was satisfied: The exception would apply only (1) in certain special cases (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holders. Yes said the Court  - all three steps are satisfied - concluding "Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."  

PRCA director general Francis Ingham added "The Court of Justice, like the Supreme Court before it, understands that the NLA’s attempts to charge for reading online content do not just affect the PR world, but the fundamental rights of all EU citizens to browse the internet" and "This is a huge step in the right direction for the courts as they seek ways to deal with the thorny issues of internet use and copyright law. We are pleased that we have stood up for the PR industry – along with Meltwater – when everyone else rolled over."

However, David Pugh, managing director of the NLA, stressed that the result of the case had no bearing on the licences NLA Media Access issued to Meltwater and other media monitoring agencies or to those agencies' clients telling PR Week  "Media monitoring agencies still require a licence to copy online content to create paid-for services for their clients and their clients still need a licence to receive those services. This ruling does not change anything in that. If you're a client of Meltwater, you still need a licence to view that content." adding  "This will only have an impact if new services are developed in future where the agencies create a portal that their clients access to view the content; if that means the end user does not need to pay a licence fee then we would seek to increase the fees paid by Meltwater and other agencies."

More from Eleonora on the IPKat here.

Breaking the internet: a response

The 1709 Blog is committed to furthering the copyright debate on all matters of public interest and is therefore pleased to host this response by James Mackenzie (Commercial Director, Cutbot Ltd) to Simon Clark's recent comments on the dispute between Meltwater and the Newspaper Licensing Agency (NLA):

Last week Simon Clark from Berwin Leighton Paisner argued here that the infamous High Court and Court of Appeal rulings on Meltwater v NLA don't "break the internet", as others have claimed. There were two odd omissions from his piece: first, an acknowledgement that he helped to represent the NLA, and second, any direct quotes from the courts' judgments. I should therefore explain that I am a founder of Cutbot, a new online media monitoring firm. Nevertheless, my objections to his position and to the courts' rulings are to the principle more than to the commercial consequences. Let's start by disposing of one of Mr Clark's red herrings. He claims that the rulings rested in part on the terms and conditions posted as public notices (in the Hitchhiker's Guide sense) on publishers' websites. Entirely untrue. To quote the Court of Appeal (§49):

The purpose of these proceedings is to ascertain the rights of the parties in relation to copyright, not some independent contractual right of a publisher.

He also sets out a straw man argument, which he claims is regularly made, that the Court of Appeal has made "all browsing on the internet illegal". No, it has not. But nor does the ruling only affect paid-for monitoring services like Meltwater or Cutbot. To quote from the High Court (this is the bulk of §103):

When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer. … [I]t seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.

The Court of Appeal, summarising the High Court's ruling, explained that (from §5):

[T]he copies made by the end-user's computer of … the article itself when clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers' copyright.

Remember these are not copies in the sense of republication elsewhere for any purpose, commercial or otherwise. These prima facie infringements occur when a user clicks on a link in an email and their computer asks a publisher's server for a copy of a legitimate article, as posted on the publisher's site. The publisher's server freely provides the HTML and associated code required to view the page. Receiving this information is, the courts argue, prima facie an infringement of copyright. Furthermore, just viewing an email containing headlines and links to legitimate content will infringe, (High Court, §104):

An End User who uses the share function to forward a headline Link (and, a fortiori, an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under s. 18 CDPA.

The scope of the courts' rulings is actually this. All browsing of copyright material is a potential infringement unless a defence of non-commercial or private use applies. So too is merely referring to a work by its title (such as the headline). Simply receiving an email with links can be infringing – even if you have no contractual relationship with any media monitoring firm. The fact that the NLA have only hit media monitoring firms and our clients should not reassure anyone else who visits the Guardian or Telegraph websites at work. You should also worry that they require a licence from a small UK startup like ours, with a turnover of below £30k, but have exempted Google, whose UK turnover alone is nearly £400m. The Google News site is, of course, free to the end user, but Google is hardly a charity. As the two pigs fail to notice in the context of Facebook, we're not the customers, we're the product. But Google News is a sideshow compared to Google's main operation. They aim to index every public page with copyright material, and are not charged for the privilege. We index a small subset of those pages and are threatened with a charge equivalent to a third of our turnover (Meltwater are asked to pay 0.14% of theirs, incidentally). The upshot is that any search engine could, if the publishers wanted, be charged or excluded. They gave up in Belgium, but that's hardly reassuring either. Clearly newspaper articles are works for copyright purposes, which is why we do not show clients any part of the body of the article, unlike Meltwater. Headlines are titles, though, just like titles for any other work. Whether or not they are copyright, they are also the only clear way to refer to a work. Even if one agrees that headlines can be copyright, that should not necessarily imply that using them to reference articles constitutes infringement. That's an essential part of the democratic flow of information, as protected by Article 10 of the ECHR. In fact, the protocols on which the internet is built include inherent implied licences. We intend to challenge some of the consequences of these confused rulings: by negotiation with the NLA if possible, or through the Copyright Tribunal if not. For example, the NLA, acting as a collecting society, charge us and our clients a licence fee, and obtain our clients' contact details, while running a partially competitive service called eClips. It's hard to imagine a clearer prima facie breach of competition law, facilitated in this case by unclear legislation and a collecting society determined to see what Professor Lionel Bently calls "innocent acts" defined as infringements. Other problems caused here may be resolved in the Supreme Court, especially given developments in EU law (notably Infopaq II and FAPL). Some, I suspect, will have to be legislated on if Ministers don't want a uniquely heavy-handed copyright regime to stifle the sorts of legitimate businesses that thrive elsewhere, and if they don't want to hand UK markets over to our unhindered competition in the US or elsewhere in the EU.

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.

Blogging, posting, linking… infringing? Not in Canada

Current UK case law tells us that posting excerpts from an article published online infringes copyright in that article. Headlines are also protected, as they are deemed to form a substantial part of the article, and could in some cases be works in their own right  (NLA v Meltwater, reported here and here). The Court of Appeal has confirmed that the exception permitting fair dealing for the purpose of reporting current events does not apply to this type of copying. The question of whether the temporary copies defence applies is being appealed to the Supreme Court (see here).

Further, in a summary decision the UK courts have held that merely linking to a website that has published unlawful content could incur liability (McGrath v Dawkins).

 © owenwbrown

These issues form part of the current copyright consultation (a summary of the response is available here), but for the time being UK case law points firmly in favour of online copyright owners. The Canadian Federal Court has however recently decided a case which means much more freedom for bloggers and users of social media sites in Canada.

The case was brought by Free Dominion, "The Voice of Principled Conservatism". Free Dominion is a Canadian-based political news website on which users can post articles or link to online content for the purpose of political debate.

The Federal Court's decision relates to two works in which copyright was alleged to have been infringed. The first work was an 11-paragraph article published by the Toronto-based daily newspaper, the National Post. The article was initially reproduced in full on Free Dominion however it was reduced to a three and a half paragraph excerpt (including the headline) further to a complaint from the National Post. The second work in which copyright infringement was alleged was a photograph published on a photographer's website. The photograph was not reproduced on Free Dominion however a link to the photograph was posted.

© Rohan Kar

The Federal Court of Canada dismissed both claims. It held that three and a half paragraphs was not a "substantial part" of an article and that Free Dominion had therefore not infringed the National Post's copyright. It is interesting to note that whilst in Canada three and a half paragraphs, including a headline, is not deemed to be a "substantial part", in the UK an extract consisting of  265 characters can be a substantial part of an article for the purpose of copyright infringement.

Further, the Federal Court found that even if the copying was substantial, the article had been used for the purpose of news reporting and was therefore fair dealing. As noted above this defence is not available in this context in the UK, however in Canada the court held that fair dealing should be given a "large and liberal" interpretation therefore news reporting could include posting extracts from articles online.

As regards the provision of a link to a photograph, the Federal Court held that the link was not copyright infringement. The court found that the photographer had authorised the communication of the work by posting the photo online, and noted that the photographer could remove the photo if he wanted to prevent people from linking to it.

This blogger is not aware of the UK courts having directly considered this question, however as noted above, the High Court for England and Wales has summarily found that it is possible to be liable for linking to defamatory material. We have yet to hear the outcome of this case, in contrast however last year the Supreme Court of Canada ruled against attributing a defamation claim to online links.

It seems that the English and Canadian courts are taking very different approaches to online liability, however if the Free Dominion case is appealed (which seems likely) the lay of the land may yet change again. In the meantime this case provides reassurance for bloggers and users of social media sites in Canada that they may include short extracts from published material and may link to other sites without fear of reprisal.

Copyright Tribunal's final decision in Meltwater now available

As readers of this Blog will remember, last February the Copyright Tribunal published its interim decision in the fascinating case of Meltwater Holding v The Newspaper Licensing Agency (see 1709 Blog's coverage here and here).

Now, the Tribunal has issued its final decision.

Controversy arose out of a new pair of licences promoted by NLA in 2010, called the Web Database Licence ("WDL”) and Web End Users Licence (“WEUL”). The WDL/WEUL relate to the particular type of media monitoring activity carried out by Meltwater. 

The NLA contended that the nature of Meltwater’s business meant that both it and its customers needed to take out WDL and WEUL agreements. Meltwater’s position was that it was prepared to enter into the WDL and undertook to do so, but that its customers did not have to enter into the WEUL at all. This was because Meltwater’s customers, by receiving the Meltwater service, did not commit any of the acts restricted by copyright and therefore did not need a licence. As clarified by the Tribunal in its interim decision, 

Surely there is more expectation about the 
Supreme Court's Meltwater ruling
than the release of The Dark Knight Rises ...
Definitely.

In a nutshell Meltwater’s point was that the material sent to customers was too insubstantial to be a copyright work or to be a substantial part of the original news article. Copying the material would not infringe (if there was no licence) and so copying the material was not a restricted act.

The findings of the Tribunal were however that 

end users of a headline only service should enter into the WEUL just like end users of the normal Meltwater News service of headlines plus extracts and should be subject to the same tariff rates.

This said, the Tribunal agreed with Meltwater and the PRCA's contention that the NLA's proposed licensing scheme was not reasonable and required amendment.

As reported by journalism.co.uk, since the interim decision of the Copyright Tribunal, the parties have worked together in close consultation to reach an agreement on the finer details of the licensing payment model, with a revised fixed price agreed upon.

Now, the Tribunal has accepted the terms proposed by the parties as "reasonable".

Some copyright enthusiasts are already camping
outside the Supreme Court,
waiting for the start of the Meltwater's hearings

Compared to the first licensing scheme, the agreement now includes - inter alia - reduced rates for the very smallest users (low number of employees) and, in parallel to this, increased rates for the users with high numbers of employees.

Co-founder of the Meltwater Group Jens-Petter Glittenberg explained that the NLA and Meltwater are now committed to ensuring that UK end users of such monitoring services are licensed quickly, fairly and efficiently. 

So far so good -- but fans of this saga will have to keep holding their breath for a year or so. Meltwater and PRCA appealed aspects of the Court of Appeal's decision on web browsing to the Supreme Court (see here). Release of the sequel is expected in early 2013.

Meltwater: Copyright Tribunal ruling -- now for the other side of the coin

While I was digesting the media release on behalf of the Newspaper Licensing Agency (NLA) for an earlier post here, Meltwater Group and the PRCA (Public Relations Consultants Association) issued their own, quite upbeat release too. It reads, in relevant part:

"Today’s Copyright Tribunal ruling makes it clear that the UK’s copyright law is on a head-on collision with the average Internet user. Everyday acts such as searching for news and sharing it at work now require a license from the Newspaper Licensing Association (NLA). In a win for business, Meltwater Group and the PRCA (Public Relations Consultants Association) were able to convince the Copyright Tribunal to slash the NLA’s proposed license fees by 90 per cent. Sadly today’s verdict is only a partial victory for the UK Internet community. Going forward, it is clear that UK clients of online news monitoring services will need a license agreement with the NLA and pay copyright fees. This is also the case for commercial UK clients of any news monitoring vendor including Google News. During the proceedings, the NLA stated that it has been mandated by its owners and intends to pursue licensing of UK business users of Google News.

These UK court rulings make millions of UK citizens lawbreakers. According to the courts, sending an email to a work colleague with a news headline, browsing a free news service or sending a Tweet with news at work requires a licence from the publishers, without such licence they infringe copyright. UK copyright law needs an overhaul to make it compatible with the Internet. Without such modernization, millions of people will unintentionally break the law every day.

Today’s decision in the Copyright Tribunal is part of an on-going series of cases where Meltwater and the PRCA challenged the NLA on its high fees for reading freely available news. In the ruling, the Copyright Tribunal agreed with Meltwater and the PRCA's contention that the NLA's proposed licensing scheme was not reasonable and required amendment. Nine points were challenged by Meltwater and the Tribunal agreed with Meltwater on seven of them. By fighting this licensing scheme, the PRCA and Meltwater were successful in reducing the fees for all businesses totalling more than £100 million over the next three years. The savings for Meltwater clients alone are more than £24 million in the same period.

“The ability to browse the Internet without fear of infringing copyright has always been a fundamental Internet principle. Society is not served by these rulings in UK and it seems that this interpretation of the law fundamentally clashes with how millions of people use the Internet every day,” says Jorn Lyseggen, CEO of Meltwater. “Meltwater is a strong believer in copyright and a strong supporter of a sustainable, independent press. However, the UK needs a copyright law that allow its citizens to use the Internet without fear of unintentional infringement.”

Meltwater and the PRCA continue to advocate for a modern copyright law for the UK. Notwithstanding the Tribunal's decision, Meltwater and the PRCA are appealing aspects of the Court of Appeal's decision on web browsing to the UK Supreme Court scheduled for February 2013. Also encouraging are several recent decisions of the European Union Court of Justice that are consistent with Meltwater and the PRCA’s position. In addition to attention from the judiciary, Vince Cable, UK Business Secretary, recommended in August that the UK government should change these out-of-date copyright laws based on the recommendations of the Hargreaves Report: Digital Opportunity – A Review of Intellectual Property and Growth. The UK Intellectual Property Office estimated that changes to the law will bring £7.9 billion to the UK economy. With copyright rules that are friendly to both publishers and businesses, the UK economy will create a new layer of services that help publishers make more money and increase UK tax revenues. ...

Importantly, the ruling is unique to the UK and only impacts people reading and sharing news in that country. As recognised by the Copyright Tribunal, copyright is governed by national law and users of media monitoring services outside UK are not subject to NLA licensing fees today.

Meltwater and the PRCA have stood alone in challenging the NLA’s licensing scheme both in the courts, and in the Copyright Tribunal, on behalf of PR agencies, in-house PR teams and all other business users of the Internet. If unchallenged, the NLA’s scheme would have increased costs not only for Meltwater customers but also for all users of commercial media monitoring services, many of whom are PRCA members ...".

I have just heard from my blogging colleague Asim Singh that Associated Press is commencing proceedings against Meltwater in the United States -- so I think we can assume that this conflict has gone global.

Meltwater: Copyright Tribunal ruling out today

The 1709 Blog has received this afternoon two items of interest to those who have been following the Meltwater saga (see eg earlier posts here and here).  The first is a link to the interim decision of the United Kingdom's Copyright Tribunal, which was released today.  The second is an unsurprisingly upbeat media release from law firm Berwin Leighton Paisner LLP, which had the good fortune to be instructed by the winning party, the Newspaper Licensing Agency (the NLA). According to the media release,

"In response to the Copyright Tribunal’s interim decision in the case of Meltwater Holding v the Newspaper Licensing Agency, David Pugh, Managing Director of the Newspaper Licensing Agency, said:

“We welcome today’s decision which follows two court cases [Chancery Division here; Court of Appeal here] confirming the legality of licensing [it's not licensing per se that is at stake -- that has never been in question. Rather, it's one specific situation in which the NLA maintained that a licence was necessary]. We are pleased that the Copyright Tribunal has upheld the principle and structure of our online licensing scheme, and confirmed that Meltwater is subject to the same requirements as Media Monitoring Organisations.  

The judgment provides a measured, equitable regime that will ensure stability for both publishers and end-users alike: our customers will benefit from a transparent licensing structure and newspapers can be sure of a fair reward for their content.  

We think that all concerned will welcome the certainty that the Tribunal has provided, and we look forward to working with the newspapers, MMOs and our customers to implement the licence as quickly and as smoothly as possible”

Simon Clark, Head of Intellectual Property at Berwin Leighton Paisner, who led the team representing the NLA and the newspapers, added: "This is an interim decision - the parties now have two months in which to try to agree a few outstanding issues, after which the Tribunal will issue its final decision setting out the exact wording of the two online licences".

Today's ruling, which runs to over 260 paragraphs plus appendices, will take a while to digest. Meanwhile, the dispute is still to receive the benefit of an analysis from the Supreme Court.  Nor -- and this may be a possibility given that the courts in Slovakia have approached a similar dispute in a very different way -- has there been a reference to the Court of Justice of the European Union.

Copyright Debate: Is NLA v Meltwater the end of browsing?

Making a debating point --
or hailing a London taxi ...?

It all seems a bit sudden, but in not much more than two weeks from now there will be a free-to-attend copyright debate on the motion "Is NLA v Meltwater the end of browsing?"  The date is Tuesday 15 November 2011 and the two sides will lock horns from 5.15pm to 7.00 pm. The venue is the London office of Baker & McKenzie LLP.

1709 Blog team member Jeremy will be taking the chair. Speaking for the motion are Professor Andrew Murray (London School of Economics) and Dr Neil J. Wilkof (head of Intellectual Property, Herzog Fox & Neeman).  Ranged against them are Dominic Young (blogger and former director and chairman of the Newspaper Licensing Association) and Justine Pila (lecturer at Oxford University).

Why should you attend this debate? As the hosts explain:

The Court of Appeal for England and Wales recently upheld the High Court's judgment that users of commercial news aggregation services infringe copyright when they click on links to articles (The Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, 27 July 2011, on which see earlier 1709 Blog posts here, here and here). As a result anyone who clicks on an internet link creates an infringing copy of the webpage on their computer screen unless they have a licence. 

The Supreme Court's decision as to whether they will accept an appeal from this decision is eagerly awaited, but in the meantime the question that arises is: Is NLA v Meltwater the end of browsing as we know it?

To attend, email Naomi Harrison here and hope there's still room since space is limited.

The debate is CPD-accredited for 1 hour and 30 minutes - Solicitors Regulation Authority Authorisation 009/BAMC

Licences for links: Meltwater and the NLA

An interested and concerned reader has forwarded to me an email from Meltwater, a Norwegian-based business which now provides news and analysis services in more than 110 countries. The email reads as follows:

"Dear Meltwater Customer,

You may or may not be aware that the Newspaper Licensing Agency (NLA) recently decided to extend its hardcopy licensing regime to cover links to newspaper website content. The NLA believes that you (our customer) need a license from the NLA in order to click on the links you receive from the Meltwater News Service. Meltwater strongly disagrees with this and has announced today that we are taking the NLA to the UK Copyright Tribunal to challenge what we consider to be a "link tax" without legal basis.

The NLA, originally formed in 1996, was created to license and collect revenue from the copying and clipping of print media. Now the agency is attempting to enforce licensing agreements on Internet links. The NLA is targeting both companies providing media monitoring services and the customers subscribing to such services.

Meltwater is pursuing this legal action after the NLA threatened to sue any online media monitoring company who fails to sign up to its new content licensing agreement by January 1. 2010. We have been in good faith discussions with the NLA for several months now, but have been unable to come to an agreement. While Meltwater respects the copyright of the NLA's members, the licensing scheme seeks to control the receipt of links to freely published online content, even though such rights are not granted to copyright owners under UK copyright law. Therefore, Meltwater has decided to take this matter to the UK Copyright Tribunal because we believe that the NLA's licensing scheme has no basis in UK copyright law.

It may take 9 to 12 months for the Tribunal to come to its decision. In this period, Meltwater will continue to serve you with links to relevant news stories and we will continue to do our very best to meet your needs. ..."

Meltwater's email also contains an attachment with FAQs relating to this dispute. The NLA website's Guidance for Clients in turn contains the following advice:

"Soft Copy/Electronic Press Cuttings

If your client receives an electronic press clipping service from a press cuttings agency either via a web portal, or if you gain access to relevant articles via web links and wish to give your clients access to their cuttings via this means, then you will need to ensure you have opted for the digital extension to your NLA licence.

Agencies must confirm to the NLA the number of email addresses they wish to supply with cuttings at each client. Clients are allowed to view the cuttings on screen without the need to be licensed. If clients wish to print off copies, or foward emails they will need their own NLA licence".

Further information is provided in the "FrontLine Survival Guide to Copyright for PR Professionals" here.

While readers are left to make up their own minds, the 1709 Blog can add a few short observations and comments: (i) if neither the provision of links to customers nor their use by customers constitute acts which are restricted by copyright, there is nothing to license; (ii) it appears from the above that, while Meltwater states that it is the customers who will require a licence, the NLA states that clients can view cuttings on-screen without the need for a licence and it is the agency that needs the licence; (iii) this is the sort of scenario in which the absence of generally-agreed international norms as to what is permitted (or not) on the internet is bound to cause persistent trouble. Links to copyright-protected material are no longer a new and unfamiliar phenomenon; the time has surely come to reach a clear and consistent consensus, so that businesses can invest in the creation, sale and dissemination of content in the knowledge that their investment either will, or will not, be protected by copyright law, by contractual licence, by unfair competition principles or by anything else.