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If you are reading this article in hard copy, you may not be conscious that your eye is reproducing an image of the text on your retina – at least, until I mentioned it.
Equally, if you are reading this online, you may not be paying much attention to how your browser is actually “reading” the text either. If you give it a second thought, you will realise that your browser has retrieved the data, made a copy in your computer’s memory and then displayed a further copy on screen in readable form. But this article is a literary work – admittedly, not a work with literary pretensions, but still a work in which enough “sweat of the brow” has been invested to justify copyright protection.
So do you need a licence of copyright to be reading an article online? – even if you just read the headline or a short extract? The UK newspaper industry believes so – at least, where links are provided by aggregators that charge for their services. Representing national newspaper publishers, the Newspaper Licensing Agency (NLA) sought a declaration to that effect from the High Court in November 2010.1 The defendants were online aggregator Meltwater News UK and its Dutch holding company (together, Meltwater) and the Public Relations Consultants Association (PRCA).
Background
Seinfeld was once amazed that “the amount of news that happens in the world every day just exactly fits in the newspaper”. Equally amazing to some is the emergence of a secondary news forum online, but the internet has facilitated (and is facilitated by) automated filtering technology.
This dispute springs from an ongoing wrangle between the NLA (wanting to monetise its members’ website content through an NLA licensing scheme launched at the start of 2010) and Meltwater (wanting to provide links to online news, but without the need for Meltwater – or its customers – to take a licence of copyright). The NLA insisted that Meltwater should enter into the NLA’s Web Database Licence and – controversially – that Meltwater’s customers should also take a Web End-User Licence.
In December 2009 Meltwater referred the commercial terms of the licensing scheme to the Copyright Tribunal for adjudication.2 The PRCA, representing the public relations industry (i.e. many of Meltwater’s customers), intervened in support of Meltwater. This left open the question of whether a licence is required in the first place (which Meltwater and the PRCA both deny). The Tribunal does not have jurisdiction to adjudicate on this, so the NLA sought a ruling from the High Court.
The case before the High Court
The declaration sought was whether, in receiving and using Meltwater’s news service, Meltwater’s commercial customers infringe the newspaper publishers’ copyright so as to require their own licences from the publishers.
In this hearing the Court was not asked to rule on whether an online aggregator is itself required to take a licence – an important, unanswered question about the lawfulness of internet searches. Meltwater had already indicated (while denying any legal basis for requiring a licence) that it would enter into the NLA’s Web Database Licence, but only on terms that the Tribunal determines to be reasonable; accordingly, on 5 July 2010 Newy J stayed the claim in this action against Meltwater, but directed an expedited trial of the claim against the PRCA.
The NLA alleged that, by receiving emailed copies of headlines and article extracts from Meltwater’s news service, by accessing the same material on Meltwater’s website and/or by clicking on related hyperlinks to articles published online, PRCA members create unauthorised copies of, and so infringe, NLA members’ copyright works.
But at the heart of this first-instance decision is a deeper conundrum – how to apply copyright law in the digital age. Copying proliferates in an online environment: the internet cannot function without successive digital reproductions. Common sense suggests that, for the internet to function effectively in a liberal society, certain content should be excluded from copyright protection or (if not) there should be appropriate exceptions for fair use of copyright content. In fact, that is essentially the current state of UK law. The devil is in the detail, and to date there has been very little judicial guidance on how to interpret the broad principles laid down by EU and domestic law.
The small print
So the High Court, for the first time, considered some key, largely unanswered questions. In outline, the presiding judge, Proudman J, gave the following answers:
- Can a headline be protected as a literary work in its own right? – Yes, if the headline contains an element which is, in itself, the expression of the “intellectual creation” of the author of the article. Here, the judge followed the decision of the European Court of Justice (ECJ) in the Infopaq case,3 in which the ECJ found that an article extract of merely 11 consecutive words might be capable of copyright protection. “Intellectual creation” requires a sufficient degree of originality, in the sense that sufficient skill and labour must be involved in crafting the headline. In doing so, the judge acknowledged that this ran counter to a long line of common-law authorities suggesting that headlines, like titles, are too insubstantial, too trivial and/or too short to qualify for copyright protection as free-standing literary works.
- Is a headline or text extract a substantial part of an article? – Yes, if it represents a substantial part of the article in qualitative, not quantitative, terms (judged in light of the Infopaq criteria). The quality concerned is not literary quality, but the quality that merits copyright protection, i.e. a sufficient degree of skill and labour on the author’s part. The headline or extract will not necessarily reflect the originality of the whole article, but might have its own stamp of individuality reflective of the intellectual creation of the article’s author – a question of fact and degree in each case. Headlines and text extracts might qualify for copyright protection in “many (though not all) cases”, by providing the “tone of the article” and having the “special function of drawing the reader in to the work as a whole”.
- Does a commercial end user infringe copyright by using the database constituted by a publisher’s website? – No: while section 3 of the Copyright, Designs and Patents Act 1988 (CDPA) provides protection for original databases as literary works, copying a text extract does not reproduce a substantial part of the effort that went into the structure and arrangement of the articles within the website.
- Does a commercial end user infringe copyright by receiving a headline or text extract by email? – Yes at first sight (in the absence of a licence), because a copy of the email is made on the end user’s computer.
- Does a commercial end user infringe copyright by linking to an online article? – “More likely than not” in principle (unless that end user has a licence), in that an unauthorised copy is made on the end user’s computer. The judge noted that the PRCA’s contention of an implied licence had not been presented clearly enough.
- Does the temporary-copying exception apply? – No. The exception under section 28A of the CDPA should be construed narrowly, and does not justify all acts of browsing. A copy made in the course of browsing must be:
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(a) |
as required by statute: (i) temporary; (ii) transient or incidental; (iii) an integral and essential part of a technological process; (iv) solely intended to enable (A) transmission of the work in a network between third parties by an intermediary or (B) a lawful use of the work; and (v) without independent economic significance; and
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(b) |
following Infopaq: (i) restricted to what is necessary for the proper completion of the technological process; and (ii) stored and deleted automatically. |
- In summary, rather than looking at the act of browsing in isolation, the judge took a purposive view in interpreting these criteria, assessing the copying in light of the end user’s objective and Meltwater’s commercial motivation, which the judge found fatal to the application of the exception. The judge also commented on a potential circularity inherent in the exception, in that “it begs the question for decision whether making the copy is to enable a lawful use of the work”.
- Is there a fair-dealing defence? – No: neither for the purpose of fair criticism or review, nor for the purpose of reporting current events.4 No matter how widely the first purpose is interpreted, the judge could not see that end-user activities fell within it. The second defence is intended to protect the role of the media in informing the public about matters of current concern to the public, but the Meltwater service was found not to be intended for public consumption, but tailored (and addressed exclusively) to particular end users. In any event, Meltwater’s large-scale use of copyright works without the publishers’ authority could not amount to “fair dealing”. Besides, the statutory requirement for a “sufficient acknowledgement”5 could not be satisfied merely by a link to the original source.
Accordingly, the defendants lost the case on all counts (bar a favourable ruling on use of the publishers’ databases).
Issues arising
The High Court did not consider the effectiveness of the publishers’ online terms and conditions in any detail, whether in relation to the aggregator or the end users – which is surprising, as this is potentially relevant to the scope of permission that the aggregator and/or end users may or may not have. The judge acknowledged that she was taken to no authority on incorporation of website terms and conditions, implied licences, the meaning of “commercial use” or the impact of such factors on copyright infringement.
Further, the High Court ruled on the complex issue of the application of the temporary-copying exception in a single paragraph, in a densely packed review of the criteria. Those could do with some unpacking. For instance:
- The Infopaq ruling appears to have explained the meaning of “transient” copying (and in the context of aggregator, not end-user copying), but the ECJ did not rule on “incidental” copying (as this was not pleaded before the ECJ in Infopaq). In adding further requirements relating to transience, the High Court appears to have hard-wired a need for the copying to be transient, contrary to the wording of the exception. Would it, for instance, be enough for this criterion that a copy is simply incidental to the act of browsing?
- The High Court did not explore the potential circularity inherent in the criterion of enabling lawful use. The judge followed the Economic & Social Committee’s opinion6 on an early draft of the relevant European Directive 7 that any “reproduction that in effect is a consumption of the work, such as … temporary copying … in order to use or access such works … should only be permitted with the rightholder’s authorisation”. Recital 33 of the Directive, however, explains that a use should be considered lawful where it is either “authorised by the rightholder” or “not restricted by law”. Perhaps that second limb should not be so easily discounted. The judge considered that the exception could not have been intended to legitimise all copies made in the course of browsing (e.g. copies of pirated films or music); here, however, the news content is otherwise freely available and is viewed on (and actually made available by) its original source, so perhaps there is a pertinent distinction to be drawn.
It is worth noting here that the High Court did not consider (having not been asked) whether the exception could apply to the “scraping” (i.e. temporary copying) required to create the aggregators’ searchable databases. Accordingly, there is still no UK-law authority on this question.
Broader implications
The decision has been widely criticised by online aggregators and the PR industry – not just on the particular facts of the case, but also as raising broader issues about the lawfulness of ordinary internet usage. Francis Ingham, the Chief Executive of the PRCA, described the High Court’s decision as risking “putting an end to the freedom with which information can be shared on the internet”, with an implication that “the mere act of browsing freely accessible websites will require a copyright licence to do so”.
Put in those terms, this seems unduly alarmist. The Court, making a declaration only on the facts before it, did not rule on the lawfulness of free personal linking per se (or on whether the actual text of a link constitutes an independent copyright work). Nor, it should be noted, has the NLA – “currently at any rate” (as the judge noted) – sought to impose licences on consumer-facing aggregators (such as Google News and Google Alerts) or on non-commercial end users.
Nonetheless, the decision does touch on many difficult, unanswered questions about the legal status of online relationships and the complex nexus between statutory rights and contractual rights (on which the relevant legislation remains deeply obscure). While the judgment does not purport to rule on the lawfulness of browsing in general, the case does appear to suggest that (in the absence of a clearly applicable exception) the mere act of browsing constitutes prime facie copyright infringement that can only be sanctioned by a web publisher’s authorisation. If this is right, there is a considerable mismatch between ordinary internet users’ perception of their freedom to browse publicly posted content and the true underlying legal position. Of course, that authorisation may be forthcoming in many instances (e.g. for personal use), but it appears to hand control of the internet to copyright owners to an extent that rights-holders may themselves feel should be carefully defined: after all, the national newspapers’ own reporters are dependent on accessing copyright-protected sources, such as government publications protected by Crown copyright and foreign and local news. So for newspapers and readers alike, this judgment touches on the difficult question of acceptable limits to freedom of communication and expression. In this respect, it should be noted that the Court was not invited to consider any potential human-rights or other public-interest defences.
Finally, the judge took a strictly literal interpretation of the fair-dealing defences, in particular the technical requirement for a sufficient acknowledgement. The conclusions reached are unsurprising on that construction, which could be perceived as Luddite in some quarters and illustrates a wider concern: to many commentators, copyright law can seem hide-bound when applied to an online environment, in which news is routinely disseminated through diverse channels (including via direct responses to individual searches), large-scale search functionality is the accepted norm, and linking is a commonplace means of acknowledging a source. Naturally, the judge must apply the law as it is. But as this case shows, the actual meaning of the law in question is, on any analysis, far from clear.
Watch this space
Meltwater and the PRCA intend (and have obtained leave) to appeal, so the case will now go to the Court of Appeal. In the meantime, Meltwater and the PRCA will continue to challenge the NLA’s licensing scheme before the Copyright Tribunal. The Tribunal hearing was originally scheduled for February 2011, although this may be affected once a date is set for the appeal from the High Court.
Interestingly, the judge stated that her opinion on substantial copying was expressed “in the knowledge that the [Infopaq] decision may sit awkwardly with some provisions of English law, that many questions remain unanswered by the ECJ and that the full implications of the decision have not yet been worked out”. Due to the particular facts of Infopaq, the ECJ stopped short of answering many of the questions that arose in this case – not just on substantial copying, but also on the application of copyright exceptions. Certainly, for all concerned, the authority of a higher court would be welcome on these important points of law.
In the meantime, you might need to think before you link. In fact, if you are reading this article online, you already have.
Ed Baden-Powell
Article written for Computer and Telecommunications Law Review
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The Newspaper Licensing Agency Ltd & Ors v. Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch). |
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Under section 119 of the Copyright, Designs and Patents Act 1988. |
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Case C-5/08 Infopaq International v Danske Dagblades Forening [2010] FSR 495. |
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Under s. 30 of the CDPA. |
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As defined in s. 178 of the CDPA. |
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Cited by Kitchin J in Football Association Premier League Ltd v QC Leisure [2008] EWHC 1411 (Ch). |
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Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. |
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