1709 Blog: for all the copyright community

Friday, 28 September 2012

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.

4 comments:

Anonymous said...

"All browsing of copyright material is a potential infringement ..."

No, it isn't. This is deeply misleading. The infringement is in the publication, not the reading. Publishing without a license is not permitted.

Some context is useful to remember here.

Cutbot is a new entrant into a competitive and mature market of service companies providing customised headline aggregation, with its own derivative product. The law is clear: aggregators require a license.

Either Cutbot does not want to pay the license fee, hoping to steal an advantage by lowering its costs. Either it is ignorant of the law, which constitutes negligence, or it is hoping the law doesn't apply to Cutbot.

I would prefer all companies, large or small, to compete on their merits, rather than lobbying to change the law to their advantage.

We are increasingly seeing internet startups using the cry of "innovation" to claim special privileges and avoid paying for their material. They would be better by actually doing some innovation.

James said...

That can't be a comment from a member of NLA staff. surely? They normally post under their own name ;)

Anyway, whoever you are, you've clearly not read the actual rulings I'm quoting from, especially §103 from the High Court above. No-one using our service "publishes" any copyright content except insofar as the courts have ruled that the copy of a legitimate and freely-provided article that your web browser makes is republication.

I can assure you we're well aware of the law as it applies to us, and we are not continuing our objection because of some competitive advantage we think it can give us. If we had managed to change the law to protect browsing and link-sharing it would probably have been much more of a help to our larger competitors.

The only real change in competitiveness would be with international firms: this regime is handing business to companies in America and elsewhere and stifling entirely innocent copyright-respecting UK operations.

Also, please don't presume to know how innovative our system is until you've tried it.

Mark Summerfield said...

Notwithstanding the allegation that Simon Clark failed to disclose an interest in the Meltwater case, I find it hard to see where he has going awry in his analysis.

James Mackenzie may like paragraph 103 of the decision of Proudman J, as a basis for his argument, but it seems to me that paragraph 109 (quoted by the Court of appeal at [32]) is more pertinent:

Thus the temporary copies exception is solely concerned with incidental and intermediate copying so that any copy which is 'consumption of the work', whether temporary or not, requires the permission of the copyright holder. A person making a copy of a webpage on his computer screen will not have a defence under s. 28A CDPA simply because he has been browsing. He must first show that it was lawful for him to have made the copy. The copy is not part of the technological process; it is generated by his own volition. The whole point of the receipt and copying of Meltwater News is to enable the End User to receive and read it. Making the copy is not an essential and integral part of a technological process but the end which the process is designed to achieve. Storage of the copy and the duration of that storage are matters within the End User's control. It begs the question for decision whether making the copy is to enable a lawful use of the work. Moreover, making the copy does have an independent economic significance as the copy is the very product for which the End Users are paying Meltwater.

I note that Proudman J has used the phrase "begs the question" correctly, i.e. "to carry on a false argument where one assumes as proved the very point that is being argued, or more loosely, to evade the issue at hand".

I am sure that Clark is correct when he says in his article that:

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.

But the point being made by Proudman J (with which the Court of Appeal agreed) is that this is not relevant to the issues actually put before her in this case. Companies like Meltwater and Cutbot charge end users for the services they provide, and end users gladly pay for these services. The content providers are understandably miffed that they are being excluded from the commercial benefits of these transactions.

The point the courts are making here is that both scraping by aggregators and viewing by end users involve the commission of acts falling within the providers' copyrights. If unlicensed, these acts are infringements.

Whether or not there is an implied license, or other authorisation, for any of these acts is a separate issue, which the courts have made very clear is not what they were being asked to decide here.

There is, perhaps, a separate case to be made that the implied licence inherent in open publishing online covers at least the activities of the end user. But it seems to me that where payments are made to a third party for aggregation of copyright content, there is unlikely to be an implied licence which is broad enough to cover this kind of commercial use to the exclusion of the copyright holder.

For those of us browsing for free, however, the internet remains un-broken.

Mark

Stephan White said...

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.

Media Monitoring