But today is a good day not just for clients of media monitoring firms, but for absolutely everyone who uses the internet in this country. Lord Sumption put it very clearly, speaking for the whole court:

… if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

Yes. A thousand times yes. And remember, this position may seem entirely obvious, but it was opposed by the NLA in court. They argued with an apparently straight face that, when someone clicks on a link to a non-paywalled newspaper website, that person may have infringed copyright simply by browsing the page which the newspaper’s servers freely provided to them.

Frustratingly, although understandably, the Supreme Court has referred the issue up to the European Court of Justice. It’s of course possible that the ECJ might not confirm their view, but, although I am not a lawyer, the detail of the Supreme Court’s consideration of previous ECJ rulings and the relevant EU Directive looks pretty robust. More likely, that referral will merely delay the point at which these protections can come into effect.

In any case, if confirmed, this ruling would appear to free all media monitoring clients, including ours, from the current licence regime and annual fees which range from just over £100 up to more than £22,000.

The NLA are clutching at two straws today, one being the delay while we wait for an ECJ ruling. The other is more substantive. As the ruling words it:

It seems very likely (although I am not deciding the point) that the licence fee chargeable to Meltwater will be substantially higher if end-users do not need a licence because on that footing the value of the rights for which Meltwater is licensed will be significantly higher.

This idea that, if clients don’t need a licence, all the fees they are no longer required by law to pay should be payable by the companies who supply them, is of course very enticing to the NLA. It would mean that they could, in revenue terms, just ignore this ruling. And if those same costs which the Supreme Court ruled against are just shifted directly onto us and our competitors we (and they) would have no choice but to pass those costs on, not least because the NLA currently charge larger organisations significantly more each year to receive our service than we charge for it ourselves. Our clients would then effectively still be paying the same fees to the NLA that they do today, irrespective of the fact that they wouldn’t need a licence to browse the web any more. Perverse.

However, not only was the legality of that approach not ruled on by the Supreme Court, it’s not clear that any argument was even heard on it. What’s more, the trend now seems to be towards balancing the legitimate commercial interests of copyright holders with an understanding what non-infringing uses of copyright material should look like. That means allowing the public to browse the web unhindered and to share information in a way that’s essential in a democratic society, and it means allowing businesses which neither compete with the newspapers nor republish their content to grow.

What’s more, no substantive arguments were heard about the licences the NLA requires us and our competitors to sign – this case was just brought by the stalwarts of the PRCA (statement here), with Meltwater (their partners for the previous cases) standing aside. Any attempt to work around the substance of today’s ruling, even in a way the Supreme Court clearly found to be superficially attractive, would surely require more court time to resolve.

Of course we agree that articles which cost news organisations to produce should not be republished without a licence: we would never do that, and we remain profoundly pro-journalism. If newspapers want to charge for their online content, they’re free to do so, and the technology is already in place and being used as a business model by some titles. But the days are surely numbered for the approach where they freely provide web pages and then try to extract fees for receiving emails with just links and headlines in them.

Sooner or, more realistically, later it seems inevitable that the courts will rule that a search engine can freely index public copyright content (and search engines’ engagement with copyright material is much broader than ours), and that no-one should have to pay for sending traffic to newspapers’ own websites. Then a final line could be drawn under this brazen attempt to take legitimate copyright protections and extend them entirely beyond their intended purpose.

Simon Clark from Berwin Leighton Paisner recently argued 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’ judgements. 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.

We were astonished when that claim was first made. Then, when the NLA wrote to us in 2009 asking us to take out a licence, we asked them to tell us which specific section of the relevant legislation they were relying upon: no answer. When the NLA took Meltwater to court we were of course confident that Meltwater would win, and our astonishment therefore reached new heights when the High Court and the Court of Appeal ruled for the NLA.

The basis for those rulings is far-reaching, and has been mysteriously under-reported by the newspapers. First, the courts decided that the HTML and so on provided to you by a newspaper website (or indeed any website with copyright information on it) is a potentially infringing copy, even assuming you never republish it or do anything with it other than view the paper’s own website.

Consider what that means.

You ask for a page. Their server freely provides the data. And yet you need a licence before you even display it. The Supreme Court will rule on this aspect next year, and we are of course again optimistic that common sense will prevail. Second, the Courts appear to have decided that some headlines are copyright, and so a licence could be required to send an email containing any headlines and links to the original stories on the publishers’ websites.

While the NLA have so far restricted their targets to people they can go after without arousing much anger, the fact is that the position they took, and which the courts supported, means that simply visiting a public news website can infringe copyright, and so too could even retweeting a publisher’s headline-and-link tweet. There’s no way of knowing if you require a licence to read any copyright material. I could even require one from you for this blogpost.

Bizarre.

Anyway, the upshot of this is that, for now, we expect to have to sign up for a licence. However, the terms of the new licences agreed between the NLA, Meltwater and the PRCA in May (see Copyright Tribunal rulings from February and May) are unacceptable to us. For one thing, they would put us out of business, because they’re seriously skewed against small companies. For another, their terms mean a boutique hedge fund making a massive profit would pay less than a medium-sized charity, even assuming the same number of staff at each receive email briefings. For yet another – well, we have a fair few objections, and you can read the letter yourself if you like. Be warned, it’s quite long. As it says at the end of our letter, “Clearly a reopened Copyright Tribunal hearing risks significant uncertainty for us as well as for the NLA, so we would urge you to give this matter your prompt consideration.”

So yes, we object to the terms, and the debate over these licences is not over. Most of all, though, we object to the principle. In order to extract these absurd and unfair fees, the NLA have paid first-class lawyers to break the internet, and most people haven’t noticed yet. We don’t “copy and exploit journalists’ work“ - we send people to publishers’ websites, sites which hopefully make money for them. And the everyday acts of browsing the web and sharing links shouldn’t be criminalised in order to prop up the NLA’s bottom line. Sooner or later that principle will be restored.