Updated on July 29, 2011
It’s a big topic, one that has attracted opinion and commentary from many voices, and was a central feature in a debate in London last month about the future of content.
Things came to a head in London on July 27 in a ruling by the Court of Appeal in favour of the Newspaper Licensing Agency (NLA) and its right to levy a fee on commercial consumers of web content who, from January 2010, require a licence to legally view or share such content.
I’ve written about it in this blog and, in the interests of transparency, I want to make it clear that my views are aligned with those who oppose the NLA, notably SaaS company Meltwater and the Public Relations Consultants Association (PRCA).
In this guest post, Meltwater CEO Jorn Lyseggen attempts to diminish what I describe as the NLA’s FUD by explaining his perspectives and motives. He makes it clear that this week’s Court of Appeal ruling is far from the end of this matter.
UK ruling makes internet browsing a copyright risk, rendering innocent acts of millions illegal
Browsing is the digital equivalent of reading. When you consume the content of a book, you read it. When you consume content online, you browse it.
The wide ramifications of the ruling by the Court of Appeal two days ago on July 27th in the case NLA v Meltwater & PRCA is that the temporary digital copies a browser creates when opening a website will be a breach of copyright unless a license is granted by the rights holder. The ruling does address a lot of other copyright related issues specifically to the dispute between NLA and Meltwater &PRCA as well, but for the broader audience this aspect of the ruling is the most interesting to fully understand.
Why does this have wide ramifications?
The significance of this ruling is that if you live in UK, every time you click on an internet link you must have a license for every page you open. This is the case for every link you follow on the internet, any link people send to you by email, or any link you find on Twitter or Facebook.
This ruling is strikingly different from general practice that consider temporary digital copies from browsing as transient copies facilitating the transmission of a work and therefore part of the explicit exception in the Copyright law.
How do you know if you have the license from the right holder to open their page?
In many cases it is impossible to know ahead of time simply because you don’t know where a link will lead you and what page will be opened in your browser. Once you have opened the page, digital copies are created by your browser, one in the temporary internal computer memory and one on your screen, and by this point you are twice in breach of copyright according to the CoA ruling unless you have been granted a license to make copies of this page.
Many web sites do have a link to terms and conditions at the bottom of their page. Examples from the Guardian and the Telegraph, both NLA owners. Both are tedious and long, but in general they grant you a “personal non-commercial use” licence.
The problem with terms and conditions of web pages
There are several fundamental problems with terms and conditions like those of the Guardian and the Telegraph.
Firstly, you don’t see them before you open the page and by this time the browser has already made a copy of the page.
Secondly, such terms are likely to change at any point in time without you being notified. Since you don’t see the terms before opening a page and the burden of finding and reading the t&c’s for every page you open is too big of a burden to put on a user, can the right holder really hold you to these terms in the first place? If you haven’t been presented with them and you haven’t accepted them, are the terms binding at all?
Thirdly, the common terminology of a “personal non-commercial use” is very vague and poorly suited to give sufficient guidance to a user what one can or cannot do.
Why the ruling creates millions of UK copyright offenders
The consequence of the CoA ruling is that if you at work or in a work context open a web page with a “personal and non-commercial use only” license, you are in breach of copyright.
Should you be a journalist researching a story you are about to write, you are in breach of copyright. If you are you an employee reading up on the latest news in your industry in the business section of an online newspaper like the Telegraph, you are in breach of copyright.
In the UK there are millions of employees every day that browse the internet to read news and other content online inadvertently becoming copyright offenders.
Why the UK is not served by this ruling
The UK society cannot be served by a copyright law that so fundamentally clashes with how millions of its citizens are using the internet every day. The ability to browse the internet without fear of infringing copyright is a fundamental internet principle. This principle has been one of the cornerstones for the successful development of the internet and all its associated business models. As job creation and economic prosperity is becoming increasingly created by digital services and ecosystems, it would be devastating for UK and stifling for UK companies if such a fundamental principle is questioned.
Why Meltwater fights this cause
Meltwater is a Norwegian privately held software company offering online news and social media analytics to more than 20,000 clients globally. In late 2009, Meltwater brought a new licensing scheme aggressively pushed by the Newspaper Licensing Agency, the NLA, to the Copyright Tribunal to rule on its reasonableness.
Meltwater has agreed to take a license with NLA for its own practice, but questioned the reasonableness of NLA to request an additional license from each of our clients, collecting copyright fees for every article Meltwater’s service is pointing them to. Such licenses would apply to the clients of all players in our industry, and across UK thousands of companies would have to pay additional copyright fees if NLA got it their way.
Surprisingly, Meltwater was the only one to challenge NLA. The easiest for us would have been to roll over and pass the NLA fees on to our clients like all our competitors did, but we took this fight because we think what NLA is trying to do is WRONG. PRCA intervened in support of Meltwater and together we are doing everything we can to avoid that the clients of Meltwater will have to pay copyright licenses for articles that they themselves can read freely on the internet or, if license fees do have to be paid, to keep the cost to a reasonable level.
Last word is not said
This issue continues in two parallel tracks:
The wider principle CoA ruling classifying millions of Brits as copyright offenders will be appealed to the Supreme Court. It is an open question if they will look at it, but Meltwater will do everything it can to make it happen.
The specifics of the NLA license are scheduled to come up in the Copyright Tribunal in September later this year. Meltwater is confident that the Copyright Tribunal will rule the NLA licensing scheme over-reaching and unreasonable.
It is my personal opinion that the CoA ruling is a parenthesis in the history of UK copyright law. Regardless of whether the Supreme Court is accepting our appeal or not, it is inconceivable that the CoA ruling will withstand the scrutiny of time. We will at some point shake our heads in disbelief by the thoughts of its absurdity and the strange and slightly entertaining copyright rulings of the early days of the internet.
Professor Lionel Bently, Herchel Smith Professor of Intellectual Property, Cambridge University, comments on the ruling as follows:
“…hereafter web-users surf the internet at their peril”
“…there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal.”
For more analysis of the case we recommend: Professor Bently’s full commentary, “Bently slams very disappointing ruling in Meltwater”; and “Clippings ruling could derail much online publishing, says expert” by Outlaw.
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